Plaintiff (Law Firm Han, Attorneys Choi Yong-seok et al., Counsel for the plaintiff-appellant)

Hyundai U.S.C. (Law Firm Samsung, Attorney Park Chang-joon, Counsel for the defendant-appellant)

September 16, 2009

Ulsan District Court Decision 2006Gadan52296 Decided December 18, 2008

1. Of the judgment of the court of first instance, the part against the defendant ordering payment to the plaintiff in excess of 5% per annum from August 9, 2005 to November 18, 2009, and 20% per annum from November 19, 2009 to the day of full payment, and the part against the defendant ordering payment to the plaintiff in excess of 3,672,814 won, and the plaintiff's claim corresponding to the revoked part shall be dismissed.

2. The plaintiff's incidental appeal and the defendant's remaining appeal are all dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

[Claim] The defendant shall pay to the plaintiff 426,987,859 won with 5% interest per annum from August 9, 2005 to the delivery date of a copy of the complaint of this case, and 20% interest per annum from the next day to the full payment date.

[Purpose of appeal] The part against the defendant in the judgment of the court of first instance shall be revoked. The plaintiff's claim against the cancellation shall be dismissed.

[Purpose of Incidental Appeal] The portion of the judgment of the court of first instance against the plaintiff which ordered additional payment is revoked. The defendant will pay to the plaintiff 103,071,547 won and 20% interest per annum from the next day to the day of delivery of a duplicate of the complaint of this case from August 9, 2005 (the plaintiff stated the base date of damages for delay on August 1, 2005 in the purport of Incidental Appeal, but it appears to be a clerical error as of August 9, 2005) to the day of delivery of a copy of the complaint of this case, and from the next day to the day of full payment.

1. Basic facts

① On December 1, 1980, the Plaintiff was employed by the Defendant and served in the production technology department Dopppppher since 1987, and has been working as the first sports division of the modern American Shipbuilding trade union, the representative of the trade union, and the chairman of the democratic workers' club.

② However, the Plaintiff, on February 20, 1997, replaced by another person the holiday work he planned to work, demanded the head of the division in charge before his subordinate employees to go through the said work. On February 25, 1997, the Plaintiff distributed printed printed matter that the Defendant reduced the amount of the reduced performance in relation to the performance bonus, allowance, annual and monthly leave, etc.

③ Accordingly, on April 14, 1997, the Defendant dismissed the Plaintiff on the grounds of objection against the order of the superior officer, the extreme injury, and the Defendant’s defamation, etc., and upon the Plaintiff’s request for reexamination, the Defendant took disciplinary action against the Plaintiff on April 26, 1997 following a review by the personnel committee.

④ The Plaintiff filed a lawsuit seeking confirmation of invalidity of the above dismissal and payment of accrued wages during the period of dismissal on the ground that the Plaintiff’s act constitutes grounds for disciplinary action, even if the Plaintiff’s act constituted grounds for disciplinary action, it confirmed that the Defendant’s dismissal disposition against the Plaintiff is null and void on the grounds that it cannot be said that the Plaintiff’s labor contract relationship with the Plaintiff is lowered by social norms. In addition, the Defendant rendered a judgment that the Defendant would pay to the Plaintiff the amount equivalent to KRW 78,235,899 based on the average wage of KRW 76,031 per day and KRW 2,312,60,09 based on the unpaid wage of KRW 76,031 per day from February 20 to the time of reinstatement.

⑤ Although the Defendant appealed against it, the above judgment was finalized on July 22, 2005 through the Busan High Court and the Supreme Court of Korea (hereinafter “the final judgment in the previous suit”), the Defendant returned the Plaintiff to the Defendant on August 9, 2005, which was after August 12, 2005, and paid the Plaintiff KRW 323,916,312 (the amount of unpaid wages shall be KRW 230,076,104) to the Plaintiff according to the final judgment in the previous suit on August 30, 2005.

6. On the other hand, collective agreements between the defendant and his trade union (hereinafter “instant collective agreements”) include the following provisions:

Article 46 (Unfair Disciplinary Action) When a member of the Labor Relations Commission or the court who is subject to disciplinary action is found to be an unfair disciplinary action, the company shall immediately take the following measures:

1. Measure for invalidation of disciplinary action and measures for attendance at work on the date of receipt of the written adjudication or decision;

2. With respect to unpaid wages, 100% of average wages as well as wages shall be paid as a matter of course at the time of attendance: Provided, That the relevant actual expenses borne by the principal until it is proved to be unfair disciplinary action shall be paid additionally by the company;

[Ground of recognition] The fact that there is no dispute, Gap evidence 1-1, 2, 3, Gap evidence 2, 17, the purport of the whole pleadings

2. The plaintiff's assertion

① Even if the Plaintiff’s dismissal from the Defendant does not conflict with the res judicata of the final and conclusive judgment in the previous suit, the wage increase in KRW 44,222,224, which occurred after November 21, 2001, which was the date of the conclusion of the fact-finding proceedings in the lawsuit seeking nullification of dismissal, and the Plaintiff’s dismissal does not conflict with the res judicata of the final and conclusive judgment in the previous suit. The same holds true inasmuch as the circumstances constituting the basis for the calculation of the amount clearly changed and thus special circumstances arise

② According to Article 46 subparag. 2 of the collective agreement of this case, the Defendant shall pay the Plaintiff additional compensation based on the unfair dismissal, and that additional compensation is equal to the average wage that the Plaintiff would have to receive during the dismissal period. Therefore, the Defendant’s additional compensation that the Defendant would have paid to the Plaintiff on August 30, 2005 plus KRW 58,849,323,00,000,000,000,000,000 won (i.e., the principal amount + KRW 230,076,104,000 + delay damages + KRW 93,840,208).

③ Therefore, the Defendant is obligated to pay to the Plaintiff the amount of KRW 426,987,859 (=4,222,224 + KRW 323,916,312 + KRW 58,849,323 +) and damages for delay from August 9, 2005, which is the date of reinstatement (as for the above part, the judgment of the court of first instance, 230,145,837, which is the principal of the wage, was KRW 230,076,104, which is the principal of the wage according to the final judgment of the judgment of the court of first instance. This is due to the difference in the calculation of the daily wage, the difference in the calculation of the wage on a monthly basis, and the difference in the amount below the original amount, and thus, can be deemed the same amount in fact). The Defendant dismissed the claim corresponding to the damages for delay and excluded from the scope of appeal to the Plaintiff and the Defendant.

3. Determination

A. As to the claim for unpaid wages

A final and conclusive judgment has res judicata effect as to what is included in the text, and even if a claim that becomes due on the basis of the time of the closing of argument becomes due in the future, if such claim is required in advance, then a lawsuit for performance may be brought in the future. As such, inasmuch as a performance order is given in the text of a performance judgment within a period that ends after the closing of argument, res judicata effect of such final and conclusive judgment shall affect the existence of a claim up to the period that is included in the text. However, in a case where a final and conclusive judgment ordering a payment of fixed-term funds for the part of the future due to a clearly changed circumstance that serves as the basis for calculating the amount after the closing of argument in the lawsuit, and where special circumstances arise that significantly undermine equity between the parties, the res judicata effect of the judgment in the previous suit shall not extend to the difference (see Supreme Court Decision 97Da58194, Mar. 9, 199

Based on the above legal principles, the judgment ordering the payment of KRW 2,312,609 per month from February 20, 200 to the Plaintiff’s reinstatement and ordering the payment of KRW 2,312,609 per month from February 20, 200 to the time of the due date. As seen earlier, the Plaintiff sought an additional payment of the annual performance-based bonus 200% and the wage increase rate applied from May 21 of each year, which has the nature of special bonus in the judgment of the previous suit. However, there is no evidence to acknowledge this portion, and it is confirmed as it is without merit, and even if the wage increase was made after the closing of arguments in the previous suit as alleged by the Plaintiff, the increase rate is not larger than the amount recognized in the judgment of the previous suit. The mere circumstance of the Plaintiff’s assertion leads to social evaluation to the extent that, even if the res judicata is excluded from the res judicata, it contradicts the concept of fairness between the parties.

Ultimately, this part of the Plaintiff’s assertion is unacceptable as it goes against the res judicata of the final and conclusive judgment in the previous suit.

B. Regarding claims for additional compensation

(1) Principles of interpreting collective agreements

If the authenticity of a disposition document is acknowledged, it shall be objectively interpreted that the parties expressed their intent in accordance with the language and text stated in the disposition document, barring any special circumstances. However, in cases where there is any difference in the interpretation of a contract between the parties and the parties concerned, if the interpretation of the parties’ intent expressed in the disposition document is at issue, it shall reasonably be interpreted in accordance with logical and empirical rules by comprehensively taking into account the contents of the language and text, the motive and developments leading up to the agreement, the purpose to be achieved by the agreement, the parties’ genuine intent, etc. Meanwhile, in interpreting a disposition document, such as a collective agreement, on the other hand, in interpreting a collective agreement, with the aim of maintaining and improving the workers’ working conditions and enhancing their welfare, a trade union, which is an independent organization of the workers, conducts collective bargaining as to their working conditions between the employer and the employer, and thus, the provision cannot be interpreted unfavorably to workers (see Supreme Court Decision 20

However, in interpreting the intent of the parties in relation to the language and text of a collective agreement, the above legal principle cannot be said to prohibit any unfavorable interpretation to workers in any case, and the interpretation standards of a collective agreement that can be derived from the above legal principle are as follows.

First, since a collective agreement is also a disposal document, if the language and text of the collective agreement is unclear, it shall be reasonably interpreted in accordance with logical and empirical rules by comprehensively taking into account the contents of the language and text, the motive and background leading up to the agreement, the purpose to be achieved by the agreement, the parties’ genuine intent, etc. (the foregoing alternative principle expressed in the former part of the precedent).

Second, in the event that the above interpretation process has gone through the above interpretation process but it is not clear how to interpret the collective agreement provisions, more favorable interpretation should be done than unfavorable interpretation to workers.

Third, a analogical interpretation, expansion interpretation, etc. exceeding the scope of the language and text of the collective agreement provisions shall not be allowed if the interpretation is disadvantageous to workers.

On the other hand, workers who are subject to the criteria for determining the principle of good faith should, in principle, be deemed not individual workers who form one of the parties to the relevant case, but the general workers subject to the relevant collective agreement.

(2) The establishment of claims for additional compensation

According to the above facts, the defendant is obligated to pay to the plaintiff additional compensation equivalent to 100% of average wages and damages for delay.

In regard to this, the defendant asserts that Article 46 subparagraph 2 of the collective agreement of this case applies only to the case where an employee who was subject to an unfair disciplinary action did not claim the money such as wages, etc. and only recognized the illegality of disciplinary action at the Labor Relations Commission or the court without claiming the money, and that this part of the lawsuit by the plaintiff is not applicable to the plaintiff who claimed the money such as wages, etc. at the same time, and thus, this part of the lawsuit by the plaintiff

In light of the language and text of Article 46 subparag. 2 of the instant collective agreement, the interpretation as alleged by the Defendant constitutes a modified interpretation of Article 46 subparag. 2 of the instant collective agreement, on the grounds that there is no ground to distinguish between the employees who have filed a claim for monetary claims, such as wages, and those who do not do so, from the standpoint of the language and text of the collective agreement, the interpretation as alleged by the Defendant constitutes a modified interpretation that goes beyond the scope of the language and text of the said collective agreement. Although evidence No. 11-3, No. 2, 3, No. 13, No. 14, 20, 21, No. 31-3, and testimony of Non-Party 1 as well as Non-Party 1 as the witness of the trial party, which conforms to the Defendant’s argument, may not be interpreted solely as alleged by

(3) Calculation of additional compensation

(A) Facts of recognition

① At the time of enactment in 1988, Article 46 of the collective agreement of the instant case, the company shall take the following measures, i.e., when a member, who was at work suspended or dismissed, has been found to be an unfair disciplinary action by the Labor Relations Commission, the court’s decision or ruling. 1. On the date of receipt of the written adjudication or the written decision, a disposition to invalidate disciplinary action and a disposition to attend work is taken; 2. On the date of receipt of the written adjudication or the written decision, a wage to be paid as a matter of course at the time of attendance shall be paid immediately.

② After that, in collective bargaining for collective agreement on July 12, 1990, the defendant labor and management agreed to revise the term "members who were at work suspended or dismissed unfairly" in the above provision to "members who were subject to disciplinary action", thereby extending the application of the above provision to all disciplinary workers. In collective bargaining on July 27, 1990, the union demanded the establishment of a provision on additional compensation for the same contents as the present time, it is reasonable for the company to pay in accordance with the standards determined by the judicial agency when it is found unfair, and the provision on additional compensation was accepted by the union while the provision on additional compensation was not meaningful, and the provision on additional compensation was introduced.

③ In conducting collective bargaining to renew a collective agreement on July 22, 1992, Defendant Labor and Management submitted a draft amendment stating that the company’s additional compensation was defective from “100% of the average wage” to “100% of the basic wage,” but did not go against the union’s opposition.

④ On June 16, 1994, the defendant labor and management offered an answer to the effect that, while conducting collective bargaining to renew a collective agreement, the company demanded the deletion of the provision on additional compensation when submitting an amendment to Article 46 of the collective agreement of this case, the company demanded the deletion of the provision on additional compensation. The current collective agreement clause provides that, “The amount calculated at the time of the judgment shall be less than the amount calculated because the current collective agreement clause would add 10% to the average wage that should be naturally received.” Ultimately, the agreement was reached to maintain the current provision on collective bargaining on July 13, 1994.

⑤ After that, on August 17, 1996, the defendant labor and management revised the name of the clause from "unfair disciplinary dismissal" to "unfair disciplinary dismissal" in accordance with the purport of the amendment in 1990 while conducting collective bargaining.

④ In preparing a written wage agreement on September 24, 1996, the Defendant and Hyundai U.S. P.A. trade union expressed two-month average wages by using the phrase “200% (ordinary wage payment standard)” and, in preparing a written wage agreement on August 8, 2006, uses the phrase “10% (ordinary wage)” at the end that means one-month average wages.

7) At the time of collective bargaining in 1990, Nonparty 1, who was the chief vice-chairperson of the Hyundai U.S. P.S. trade union, submitted a certificate to the court of first instance that “10% of the average wage” is the average wage for one month, as well as the testimony to that effect at the trial.

④ In regard to the Plaintiff’s assertion that “10% of the average wage” under Article 46 subparag. 2 of the instant collective agreement ought to be interpreted as the total amount of wages during the period of dismissal, Nonparty 2, who was the chairperson of the Hyundai U.S. Trade Union at the time of the Plaintiff’s reinstatement, requested the company to submit relevant data, etc. on August 23, 2005, acknowledged that “10% of the average wage” should be interpreted as the average wage for one month, and did not raise any objection. In addition, Nonparty 2 submitted to the court of first instance a letter of confirmation that his idea is the same as the company’s policy.

9. In addition, the defendant labor and management also expressed their opinions on the average wage for one-month under Article 46 subparagraph 2 of the collective agreement of this case through a public notice given and received on April 2009.

In addition, when negotiating the collective agreement in 194, Nonparty 4 and Nonparty 5, who was the chief vice-chairperson of the union at the time of negotiating the collective agreement in 1992, who was the head of the union, and Nonparty 6, the chief vice-chairperson of the union at the time of negotiating the collective agreement in 1992, directly prepared a proposal for requesting renewal of the collective agreement as the head of the investigation statistics of the union at the time of negotiating the collective agreement in 1990, Nonparty 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, and 17, who was the negotiating party of the trade union for the renewal of the collective agreement in 190, were also a member of the modern US vessel trade union.

11. On the other hand, on July 22, 2005, the day when the final and conclusive judgment in a prior suit became final and conclusive, the monthly average wage of the Plaintiff was KRW 3,672,814.

[Ground of recognition] In the absence of dispute, Gap evidence 7-1, 3, Eul evidence 2-1, 2-2, Eul evidence 11-1 through 4, Eul evidence 12, 13, 14, 17 through 26, Eul evidence 27-1 through 14, Eul evidence 27-1, 2, 31-1, 2, and 31-3, non-party 1's testimony and the purport of whole pleadings

(B) The meaning of “10% of average wages”

(6) In light of the following circumstances, if “10% of average wages” under Article 46 subparag. 2 of the collective agreement is deemed to mean the full amount of wages during the period of dismissal, it shall be deemed that the parties were unable to present their opinions on July 27, 1990 at the time of the establishment of the provision on additional compensation; and (2) as at the time of collective bargaining on June 16, 1994, it shall be an amount to be calculated at the time of judgment because “10% of average wages would be added to the wages to be inevitably received” under Article 46 subparag. 1 of the above collective agreement. It shall be deemed to mean that “10% of average wages during the period of dismissal” is the total amount of wages during which 10% of average wages were paid for 0%, and it shall be interpreted that “10% of average wages shall be paid for 10% of average wages during the period of dismissal and 10% of average wages during which 10% of average wages were paid.”

In the above series of procedures, the provision on additional compensation under the collective agreement of this case, which is unclear, is a case where its meaning becomes clear as a result of reasonable interpretation in accordance with logical and empirical rules by comprehensively taking into account the contents of the language and text, the motive and background leading up to such agreement, the purpose to be achieved by the agreement, the parties’ genuine intent, etc. (the foregoing first interpretation standard is applied), and there is no room to apply the second interpretation standard prior to such process, and the above interpretation cannot be deemed as an unfavorable interpretation to the general workers subject to the collective agreement.

(C) The base point for calculating the average wage

Article 46 subparagraph 2 of the collective agreement of this case provides that a company shall pay 100% of average wages immediately when it is proved to be an unfair disciplinary action by the Labor Relations Commission or the court. In accordance with the language and text, 100% of average wages is natural interpretation that is to be calculated on the basis of the date of proving unfair disciplinary action which is the date of payment, and Non-party 1 witness of this case also gives testimony to the above purport, and the above interpretation is ordinarily advantageous to workers (the above first and second interpretation criteria), and it is reasonable to calculate 10% of average wages as of the date of proving unfair disciplinary action. In this case, it is reasonable to calculate 10% of average wages as of July 22, 2005 as of July 22, 2005, the monthly average wages of the plaintiff as of July 3, 672,814, which is the date of the final judgment of the previous suit. Accordingly, the defendant is ultimately liable to pay the plaintiff, namely, the monthly average wages, additional compensation, 3672,814 won.

(4) The defendant's defense rejected.

The court's explanation on this part is identical to the corresponding part of the reasoning of the judgment of the court of first instance (No. 6, No. 14, and No. 8, No. 13). Thus, this part is cited by the main text of Article 420 of the Civil Procedure Act.

(5) Sub-committee

Therefore, the defendant is obligated to pay to the plaintiff damages for delay calculated by the rate of 5% per annum under the Civil Act from August 9, 2005 to November 18, 2009, which is the date of the final and conclusive judgment of the previous suit, and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from November 19, 2009 to the date of the final and conclusive judgment of the previous suit.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified within the above scope of recognition, and the remaining claims are dismissed without merit. Since the part against the defendant who ordered payment in excess of the above recognized amount among the judgment of the court of first instance which partially different conclusions is unfair, it is revoked, and the plaintiff's incidental appeal and the defendant's remaining appeal are dismissed. It is so decided as per Disposition.

Judges Yoon Sung-sung (Presiding Judge)