2016 Gohap 538955 Dismissal, etc.

A

B A.

March 2, 2017

March 16, 2017

1. It is confirmed that the Defendant’s dismissal of the Plaintiff on March 25, 2016 against the Plaintiff is null and void.

2. From April 25, 2016 to the date the Plaintiff is reinstated, the Defendant shall pay the Plaintiff the amount calculated by applying the ratio of KRW 164,384 per day to the date of reinstatement.

3. The costs of lawsuit shall be borne by the defendant.

4. Paragraph 2 can be provisionally executed.

The same shall apply to the order.

1. Facts of recognition;

A. Status of the parties

The defendant is a corporation whose purpose is the wholesale and retail business, and the plaintiff was employed by the defendant on August 4, 2014 and worked as the head of the management planning team in the management planning office.

B. Confidentiality of this case

On August 4, 2014, at the time of entry, the Plaintiff entered the Defendant with a confidentiality clause (hereinafter referred to as “the instant confidentiality clause”) and the main contents are as follows.

4. We will not commit any unlawful act with respect to confidential matters handled and managed in company security, such as perusal, reproduction, transmission, etc. of all of the tasks of the other department, other than those related to the company.5. I agree to be aware of the foregoing matters and to faithfully comply with them, and if the pledge violates the security requirements, I will be subject to any disadvantage such as disciplinary action under the relevant laws and regulations of the company, except for civil and criminal liability under the Act on the Prevention of Unfair Competition and Trade Secret Protection, Act on the Promotion of Information and Communications Network Utilization and Information Protection, Etc. and the Protection of Information and Communications Network Utilization and Information Protection, etc., and promise to compensate and recover without delay for the damages inflicted on the company.

(c) The plaintiff's file download;

The Defendant shall obtain the approval of the head of the team when the employees download the files in the electronic computer system to the outside storage device or send them to the outside along with e-mail. From March 21, 2016, the Plaintiff downloaded 17,303 files to the outside storage device (USB camera, etc.) by means of obtaining the approval of the team leader himself/herself, who is the team leader. In the file that the Plaintiff downloaded, a considerable number of data including the Defendant’s trade secrets, such as internal meetings, personnel evaluation data, business performance records, work manuals, cost analysis data, etc., are included in the files that the Plaintiff received.

D. Disposition of dismissal of this case

On March 22, 2016, the Defendant issued the Plaintiff as the personnel management team as of March 23, 2016. On March 24, 2016, the Defendant notified the Plaintiff of convening a personnel committee at the second floor conference room of the 10:00 head office following the following day on the ground that the Plaintiff transferred data files, such as major conference data, department KPI, business strategy, agency establishment, agency performance records, company performance records, accident history, accident manual, business plan, etc. to a mobile storage device (USB) to the mobile storage device (USB) and then sent the notification of convening a personnel committee at the 10:00 head office of the 10:00 head office (USB). However, the Plaintiff was transferred data from the personnel committee that was in progress on March 25, 2016 to the same type storage device (USB) but this was merely for the purpose and system of meeting and was not for external outflow, and thereafter, the Defendant sent an opportunity to explain his suspicion of disciplinary action, not for external outflow (hereinafter referred to “the instant dismissal”).

7. The content of the resolution of the personnel committee: The disciplinary action against the company on March 25, 2016, and the amount of benefits up to April 24, 2016 (one-month salary regardless of the remaining days); 8. The grounds for disciplinary action, etc. (Provided, That during the period, the annual use is free regardless of the remaining days) - the request for the approval of the transfer of data to the temporary storage even though the transfer of the department was made for additional prevention of divulgence due to the confirmation of the leakage of internal information; - the request for the deletion of approximately 21,60 items for the prevention of loss of 3/24 company, but the request was not removed, but there is a concern for refusal of such request - the possibility of loss of the company on the leakage of information, and there is a lack of awareness about the possibility of improvement.- If we do not accept the contents of the resolution in the above 7, we will be expected to respond to the measures of criminal charge and internal regulations.

(d) the relevant regulations;

The provisions regarding the instant dismissal disposition among the Defendant’s rules of employment are as follows.

Article 53 (Disciplinary Action) A company may take disciplinary action against any member falling under any of the following subparagraphs through a resolution of the disciplinary committee (in this case, the disciplinary committee shall be replaced by the personnel committee under Article 13); 2. A person who causes damage to the company by divulging any confidential or secret on duty; 4. A person who gives advice to obstruct the company’s business operation; 6. A person who takes out the company’s goods or money without any justifiable reason; 8. A person who commits an act of sexual harassment on the job; 9. A person who disturbs the order of the disciplinary action on the job; 10. A person who commits an act of sexual harassment on the job; 2. A person who causes damage to the company by divulging any such secret or secret; 3. A person who causes damage to the company; 4. A disciplinary action shall not be paid in writing for a period not exceeding 1/100 of the total amount of disciplinary action to be taken on the job; 3. A disciplinary action to be taken on the disciplinary committee shall not be paid for a period not exceeding 5.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 5 through 8, Eul evidence Nos. 1 through 8 (including branch numbers; hereinafter the same shall apply) and the purport of whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

1) The assertion about the violation of disciplinary procedures

The defendant's notification to the plaintiff before holding the disciplinary committee is in violation of Article 55 (1) of the Rules of Employment. The dismissal of this case is null and void in violation of disciplinary procedure.

2) Claims as to the existence of grounds for disciplinary action

Although the Plaintiff received the files containing the Defendant’s internal data from the mobile storage device (USB), it was inevitable to receive the files stored in the PC from the mobile storage device (USB), the files were not leaked to the outside, and the files stored in the PC were announced during the ordinary course of the work, or the files were downloaded to the mobile storage device (USB).

(3) Claim on disciplinary action

Even if the grounds for disciplinary action are recognized, the dismissal of the instant case is null and void as it loses equity in making a disciplinary action.

B. The defendant's assertion

The Plaintiff’s appearance before the Disciplinary Committee and sufficiently vindicateed that the defect in the disciplinary proceedings was cured. Furthermore, the Plaintiff’s receipt of files containing the Defendant’s internal data onto the mobile storage device (USB) constitutes grounds for disciplinary action under Article 53 subparag. 2 of the Rules of Employment as it constitutes the outflow or release of occupational secrets, and not only constitutes grounds for disciplinary action under Article 4 and Article 5 of the Rules of Employment, which specify the above provisions. Moreover, the instant dismissal cannot be deemed excessively excessive in light of the importance of the leaked internal data and the current competition in the cosmetics industry.

3. Determination

A. Determination as to the invalidity of the dismissal of this case

1) Judgment on the violation of disciplinary procedures

In a collective agreement, if a member is subject to disciplinary action, the employer shall notify the person subject to disciplinary action of the referral of disciplinary action from the date on which the disciplinary committee is held, but it is wrong that the employer notifies the person subject to disciplinary action of the referral of disciplinary action without any time limit prescribed in the collective agreement. However, if the person subject to disciplinary action attends the disciplinary committee and gives sufficient explanation without raising any objection to the notification procedure, such procedural defect is cured (see Supreme Court Decision 98Du4672, Mar. 26, 199).

Although the facts that the defendant notified the plaintiff before the opening of the personnel committee, it is reasonable to view that the defect in the disciplinary procedure as seen earlier was cured by explaining its position, unless there is any evidence supporting that the plaintiff raised an objection to the notification procedure in the personnel committee.

Therefore, this part of the plaintiff's assertion is without merit.

2) Determination as to the existence of grounds for disciplinary action

A) As seen earlier, the Plaintiff received an internal data file containing the Defendant’s trade secret from an external storage device (USB note, etc.). However, there is no evidence by which the Plaintiff could have known that there was damage to the Defendant due to the divulgence of the said trade secret (any act informing the Defendant of the fact) or the occurrence of damage to the Defendant. Therefore, the Plaintiff’s aforementioned act does not constitute grounds for disciplinary action under Article 53 subparag. 2 of the Rules of Employment.

B) Furthermore, the defendant asserts that the above act of the plaintiff violates Articles 4 and 5 of the confidentiality document of this case, which specified Article 53 subparagraph 2 of the Rules of Employment. While Article 53 subparagraph 2 of the Rules of Employment, the above act of the plaintiff requires that the confidentiality document of this case should be perused, copied, transmitted, or leaked to the outside without permission, it is difficult to see that the violation of Articles 4 and 5 of the Rules of Employment violates Article 53 subparagraph 2 of the Rules of Employment.

Ultimately, insofar as there is no evidence that the Plaintiff either disclosed trade secrets or caused damage to the Defendant, the Plaintiff’s above assertion that the Plaintiff’s above act constitutes grounds for disciplinary action under Article 53 subparag. 2 of the Rules of Employment since it violated Articles 4 and 5 of the confidentiality of the instant case, is without merit.

3) Sub-committee

Therefore, the dismissal of the Defendant against the Plaintiff is null and void as an unfair dismissal, and as long as the Defendant contests the validity of the dismissal of the instant case, there is a benefit to confirm the invalidity.

B. Determination on the claim for wages

When an employer’s unfair dismissal disposition is invalidated or cancelled, the status as an employee who intends to be damaged has continued, and the failure to provide labor is attributable to the cause attributable to the employer, and thus, an employee may seek full payment of wages that may have been received in the event that he/she continues to work pursuant to Article 538(1) of the Civil Act (see Supreme Court Decision 2011Da20034, Feb. 9, 2012).

As seen earlier, the dismissal of this case is null and void, and the defendant is obligated to pay the plaintiff wages during the period of dismissal.

Furthermore, there is no dispute between the parties regarding the amount of wages to be paid by the Defendant, and the fact that the Plaintiff received wages equivalent to KRW 164,384 per day before the dismissal of the Plaintiff. As a result, the Defendant is obligated to pay the Plaintiff wages calculated by the ratio of KRW 164,384 per day from April 25, 2016 to the date the Plaintiff is reinstated.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified, and it is decided as per Disposition by admitting it.

The presiding judge shall be appointed from among the judges

Judges Park Il-young

Judges Yoon Young-young

1) The Plaintiff’s above act violates Articles 4 and 5 of the Confidentiality, and this is likely to fall under Article 53 subparag. 8 of the Rules of Employment. In light of the grounds for disciplinary action, etc. stated in the personnel order issued on March 25, 2016, it is difficult to conclude that the grounds for disciplinary action against the Plaintiff are limited to Article 53 subparag. 2 of the Rules of Employment. However, in light of the content of the notice of convening the personnel committee to the Plaintiff, the Defendant’s answer during the instant pleading (the Defendant asserted only Article 53 subparag. 2 of the Rules of Employment as the ground provision for the dismissal in this case) and the Defendant’s answer during the instant pleading (the Defendant asserted only Article 53 subparag. 2 of the Rules of Employment as the ground provision for the dismissal in this case), it is reasonable to deem that