Plaintiff (Attorney Kim Young-soo et al., Counsel for the plaintiff-appellant)

Hanjin Industries (Attorney Kim Jin-hun, Counsel for the defendant-appellant)

April 25, 2003

1. All of the plaintiff's claims are dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

1. The defendant's dismissal against the plaintiff on April 30, 2002 confirms that it is null and void.

2. The defendant shall pay to the plaintiff 2,732,05 won per month from May 1, 2002 to the time the plaintiff is reinstated.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged in full view of the purport of the entire pleadings in each statement of evidence Nos. 1 through 4-1, 2, 5, 6, and 1 and 2.

A. Status of the parties

The defendant company is the Hanjin Construction Co., Ltd. (the trade name before the change: the Hanjin Development Co., Ltd.) that engaged in the construction business was merged on August 1, 199, and the plaintiff is a person dismissed by the defendant company after being employed in the service division of Hanjin Development Co., Ltd. on October 4, 1982.

(b) Primary layoff;

(1) The Defendant Company dismissed the Plaintiff on April 25, 2001 on the ground that there is urgent managerial necessity (hereinafter “the primary layoff”); the Plaintiff’s application for unfair dismissal to the Seoul Regional Labor Relations Commission was defective on July 10 of the same year; and the Seoul Regional Labor Relations Commission issued on September 10 of the same year a remedy order ordering the Plaintiff’s reinstatement; and on December 3, 2001, the Defendant Company reinstated the Plaintiff on December 3, 2001.

(2) On February 8, 2002, upon filing an application for review with the National Labor Relations Commission, the National Labor Relations Commission revoked a remedy order issued by the Seoul Regional Labor Relations Commission, and determined that the primary layoff against the Plaintiff was justifiable dismissal. On March 8, 2002, the Plaintiff filed a lawsuit for revocation of review decision with the Seoul Administrative Court, which was then withdrawn.

(c) Second layoff;

On April 30, 2002, the defendant company dismissed the plaintiff again on April 30, 2002 (hereinafter referred to as "second layoff") for reasons that there is an urgent managerial necessity.

2. The parties' assertion

The plaintiff asserts that the dismissal of the plaintiff 1 and 2 is unfair because the dismissal of the plaintiff 1 and 2 does not meet the requirements for the urgent managerial necessity, and the second layoff is invalid, while the defendant company, after the first layoff, has restored the plaintiff according to the reinstatement order of the Seoul Regional Labor Relations Commission after the first layoff, and the National Labor Relations Commission has recognized that the first layoff order was reasonable, and thus the plaintiff was cancelled again, the second layoff means that the second layoff is just for confirming the first layoff.

3. Whether the primary layoff is justifiable;

(a) Requirements for layoff;

In order for a company to be so-called high-priced corporate governance to dismiss workers due to business management needs, it shall be recognized that the relevant dismissal has objective rationality and social reasonableness in comprehensive consideration of various circumstances, including whether it was an urgent administrative necessity, whether the employer has made a considerable effort to avoid dismissal, whether the employer has selected persons subject to dismissal in accordance with objective and reasonable standards, and whether it was faithfully consulted with the trade union or the worker, etc., and whether it was done in full or in full (see Supreme Court Decisions 9Du1809 delivered on May 11, 1999; 96Nu8031 delivered on September 5, 1997, etc.). The urgent business necessity here is not limited to cases for avoiding bankruptcy of the company, but it shall also be deemed that the personnel reduction is objectively reasonable (see Supreme Court Decisions 9Du1809 delivered on May 11, 199; 96Nu8031 delivered on September 5

B. Whether the primary layoff is justified

(1) Facts of recognition

The following facts are not disputed between the parties, or can be acknowledged in full view of the overall purport of the pleadings in each entry in Gap evidence No. 12, Eul evidence No. 13-1, 2, Eul evidence No. 4-1, 2, Eul evidence No. 5, Eul evidence No. 6-1, 2, Eul evidence No. 8-1 through 4, Eul evidence No. 8-9, Eul evidence No. 10-1, 2, and Eul evidence No. 11.

(A) Since the 1997 IMF crisis, the Kinjin Construction Co., Ltd. was merged with the Defendant on August 1, 1999. After the merger, the construction sector was separated from the shipbuilding sector of the Defendant Co., Ltd. to conduct its independent business.

The Hanjin Construction Co., Ltd. prior to the merger with the defendant company suffered net loss of 75.8 billion won in 1997, and 2.1 billion won in 1998, but the merged construction division suffered net loss of 99 billion won in 1999 again, and 3.4 billion won in 2000, the cumulative net loss of 169.3 billion won in 1997 through 2000, was presumed to have increased the amount of loss, and the sales of the construction division has continuously decreased since 1998.

(B) In order to improve the management conditions of the Defendant Company, the Defendant Company: (a) reduced or sold a business division with low profitability; (b) took measures to sell assets to ensure liquidity; (b) reduced the structure of the construction sector; and (c) decided to convert 250 human resources remaining in the construction sector into the shipbuilding sector or to dismiss them.

(C) From October 13, 200 to March 6, 2001, Defendant Company held a labor union and the Central Labor Relations Commission on nine occasions, and consulted on the methods of avoiding dismissal, the scale of layoffs, the criteria and procedures for the selection of layoffs, etc.

(D) The defendant company and trade union agreed on March 6, 2001 on the reduction of human resources as follows.

1) Six employees shall be converted and placed, and 21 employees shall be released from Apishing Company, and 134 employees shall be dismissed. However, if 7 employees who will be transferred from among those who are to be dismissed agree to the transfer, they shall be excluded from layoffs.

2) The layoffs shall be selected in the order of temporary position, probationary position, person subject to disciplinary action, work evaluation, who is the lowest one, and the rate of layoffs for those who are higher than the chief of the department is higher than the lower one (the vice chief of the department is 13.3%, the chief of the department is 13.3%, the representative is 10%), and the rate of layoffs shall be differentiated by occupation (administrative 15%, civil engineering work 10%, construction 13%, machinery 12%, and electricity 12%).

3) A person subject to layoff shall be given an opportunity for voluntary retirement first and shall be paid differently according to the continuous service period, and a person who fails to apply for voluntary retirement shall be held to be dismissed.

4) Based on the personnel management department (40 points), position (10 points), age (5 points), past status (10 points), language (5 points), academic background (5 points), recommendation of headquarters (15 points), support obligation (10 points), and continuous service (10 points), an additional points shall be given if a spouse is qualified or licensed, and if a spouse has a job or has a career in a disciplinary action, a person who has obtained a low-level point shall be selected as a person subject to layoff.

(E) As a result, the Defendant Company calculated the scores of the chief of the administrative office in accordance with the criteria for selection of those subject to layoffs, the Plaintiff obtained the scores of 44th class out of 47 chief of the administrative office, and was included in seven chief of the office.

(F) The Defendant Company selected 127 workers subject to reorganization according to the agreement between labor and management, and 126 of them retired as of March 30, 2001 or as of April 31 of the same month. The Plaintiff did not file an application for voluntary retirement, and the Defendant Company dismissed the Plaintiff as of April 25 of the same year.

(2) Determination

(a)whether there is an urgent managerial necessity and efforts to avoid dismissal;

According to the above facts, when the existence of the company is difficult due to the aggravation of management due to cumulative factors, the defendant company was not negligent in self-help efforts such as asset sale measures and tried to improve productivity through the minimum reduction of human resources. Therefore, it is deemed that there was an urgent administrative necessity which has to be dismissed, and the defendant company made efforts to avoid layoff.

As to this, the plaintiff asserted that the defendant company recorded black in 2000 and that there was no urgent managerial necessity since it recorded 9.3 billion won in black in 2001, and therefore, according to each of the evidence Nos. 7 and 8, the defendant company recorded blacks in 2000 and 2001, but it is recognized that the defendant company recorded blacks in 200 and 2001, but even considering blacks in each of the above years, the plaintiff's above assertion is not accepted as it is urgent to improve productivity through reduction of human resources since accumulated blacks in 160 billion won.

Next, the plaintiff asserts that the defendant company had been engaged in personnel management for some employees, sent overseas travel to the executives and employees, and that he did not make every effort to avoid layoff by considering that he was newly employed, and that he did not make every effort to avoid layoff. Accordingly, according to each of the evidence Nos. 9, 10, 14-1, 2, 15, 20, and 14-1, 14-2, 15, and 20, the defendant company did not accept the plaintiff's above assertion that the defendant company had been engaged in personnel management for some employees on July 16, 1999, and on March 18, 200, around April 30, 200 and May 5, 2001.

(B) Whether the criteria for selection of a person subject to layoff are reasonable

According to the above facts, the defendant company has selected persons subject to layoff by applying the agreed criteria, procedures, methods, etc. for the selection of those subject to layoff after consultation with the labor union nine times, so it shall be deemed that they have selected those subject to layoffs according to objective and reasonable criteria.

As to this, the plaintiff's strong labor union activities were conducted for a multi-year period, the defendant company selected the plaintiff as a person subject to layoff, and did not provide sufficient opportunity to state his opinion during the selection process, and argued that there was a lack of rationality and objectivity in the criteria for selection of the person subject to layoffs. Thus, the above assertion is not acceptable on the basis of each statement of evidence Nos. 16-1 through 4, No. 16-2, No. 17-1, No. 2, No. 18, No. 19, and No. 19, and No. 22, respectively.

(C) Whether a faithful consultation with the worker is made

According to the above facts, in light of the fact that the defendant company has been holding a specific consultation on labor unions and layoffs over nine times since the deterioration of the management situation of the defendant company, and conducted layoffs without any opinion or opinion in accordance with the agreement drawn up, it shall be deemed that the defendant company had faithfully consulted on workers' side and layoffs.

As to this, the Plaintiff asserted that the above labor union did not hold a sincere consultation with the employees because only 5% of the total workers were joined in the labor union of the Defendant company, despite the absence of representation in consultation with the above labor union, and that the first layoff did not undergo consultation with the employees in good faith. Thus, even if the labor union of the Defendant company was not organized by the majority of the employees, unless there is any assertion or proof by the Defendant as to the fact that the labor union was selected by the representative of the majority of the employees of the Defendant company at that time, other than the above labor union, or there was a special circumstance that the above labor union did not sufficiently reflect the opinions of the employees, the above labor union cannot be viewed as not having reached a sincere consultation with the employees of the Defendant company solely on the ground that the above labor union did not constitute a majority of the employees of the Defendant company.

3. Whether the secondary layoff is justifiable;

The first layoff against the plaintiff of the defendant company can be recognized as having objective rationality and social reasonableness in full and comprehensive consideration of the urgent managerial necessity of the defendant company, efforts to avoid dismissal, objective and legitimate criteria for layoff, and bargaining efforts with the worker side, as seen above. The defendant company is deemed to have executed secondary layoff in the sense of confirming the first layoff, as the National Labor Relations Commission determines that the first layoff is legitimate. Thus, the second layoff is a legitimate dismissal.

4. Conclusion

Therefore, the plaintiff's claim of this case seeking confirmation of invalidity of the second layoff is without merit, and the plaintiff's claim of this case, which is based on the premise that the second layoff is null and void, is not reasonable, and it is all dismissed. It is so decided as per Disposition.

Judges Hahong-An (Presiding Judge) Maduk-song-song (Presiding Judge)