(영문) 수원지방법원 2020.10.29.선고 2019가합20989 판결

2. The defendant shall pay to the plaintiff 58,361,270 won with the interest rate of 20% per annum from September 8, 2020 to the day of full payment, and the interest rate of 2,376,960 won per annum from October 1, 2020 to the day of the plaintiff's reinstatement.

3. The plaintiff's remaining claims are dismissed.

4. Of the litigation costs, 10% is assessed against the Plaintiff, and the remainder is assessed against the Defendant, respectively.

5. Paragraph 2 can be provisionally executed.

Purport of claim

Paragraph 1 of Paragraph 1 of this Article. The defendant shall pay to the plaintiff 61,532,550 won with 20% interest per annum from the day following the delivery of the written application for modification of the purport and cause of the claim to the plaintiff, to the day of complete payment, and with 3,367,360 won per annum from October 1, 2020 to the day of the plaintiff's reinstatement.

Reasons

1. Basic facts

A. Status of the parties

1) The Defendant is a corporation that provides necessary technology, funds, etc. to the members running a business ① (Evidence A 2).

2) On February 1, 2014, the Plaintiff is a worker belonging to the Defendant who entered into an employment contract with the Defendant (Evidence A No. 1).

B. Preparation, etc. of the Plaintiff’s private statement

1) From March 21, 2018 to January 24, 2019, the Plaintiff prepared and submitted to the Defendant a statement and explanatory note concerning the mistake that occurred in the course of performing his/her duties over ten occasions (hereinafter “instant statement, etc.”). The specific details are as follows.

A person shall be appointed.

2) The Defendant paid attention to the Plaintiff three times from October 17, 2018 to January 25, 2019. The details thereof are as follows (Evidence A 3).

A person shall be appointed.

C. In accordance with Article 62(1)1, 5, and 2, (3)1 of the Personnel Regulations on the ground that the Defendant opened a personnel committee on January 30, 2019 and received three or more attention from the Plaintiff during the last two years, the Defendant issued the instant standby order pursuant to Article 62(1)1, 5, and 2, (3)1 of the Personnel Regulations

On the same day, the defendant notified the plaintiff from February 1, 2019 to Jindo at his own home (hereinafter referred to as "the instant standby order") in accordance with Article 62 of the Personnel Management Rules (Evidence 5).

D. Removal of this case

The defendant opened a personnel committee on April 4, 2019 and decided to dismiss the plaintiff pursuant to Article 61 (1) 5-2 of the defendant's personnel management regulations (Evidence 7) on the ground that "the plaintiff did not receive a position or job for more than three months after the issuance of the standby order" (Article 61 (1) 5-2 of the defendant's personnel management regulations). On the same day, the defendant notified the plaintiff that "the dismissal must be made as of May 1, 2019 (hereinafter referred to as "the dismissal of this case")" (Article 6). [Reasons for recognition] The defendant did not dispute with the plaintiff, the entries in subparagraphs 1 through 7, and the purport of the whole pleadings.

2. The parties' assertion

A. The plaintiff

1) The dismissal of the instant case on the ground that the Defendant received not less than three times’s attention during the last two years, and thus constitutes a disciplinary action. Accordingly, the dismissal of the instant case constitutes a restriction under the Labor Standards Act. However, in violation of Article 27(3) of the Labor Standards Act, the Defendant, without giving written notice of specific grounds to the Plaintiff, dismissed the instant dismissal to the Plaintiff without any justifiable reason. Furthermore, in violation of Article 23(1)4 of the Labor Standards Act, the Defendant dismissed the instant dismissal to the Plaintiff even though there was no “justifiable cause”. Furthermore, the Defendant, by deviating from and abusing the discretionary power, was dismissed from the instant dismissal, without any reason attributable to the Plaintiff that is sufficient to continue the employment relationship under the social norms.

2) According to the claim for payment of unpaid wages, the Defendant is obligated to pay the Plaintiff wages not received by the Plaintiff due to the dismissal of the Plaintiff. Specifically, the Defendant is obligated to pay the amount calculated by applying the ratio of KRW 61,532,550 (the details of self-sufficiency are as stated in attached Table 1) to the total amount of wages from May 2019 to September 2020, as well as damages for delay thereof, and the amount calculated by applying the ratio of KRW 3,367,360, monthly salary of the Plaintiff

B. Defendant

1) The dismissal of the instant case was naturally conducted in accordance with the personnel regulations, since the Plaintiff, upon receipt of the instant standby order, did not receive a position or position for three months. Therefore, the dismissal of the instant case cannot be deemed as practically disciplinary dismissal.

2) In addition, there is no provision that the Defendant’s personnel regulations or rules of employment should give advance notice of the grounds for disciplinary action to the person subject to disciplinary action. At the time of the Plaintiff’s notice of dismissal, the Plaintiff was well aware of the instant grounds for dismissal and the details of the Defendant’s attention. Therefore, even if the Defendant did not notify the Plaintiff of the grounds for dismissal, it cannot be deemed unlawful

3) The Plaintiff faithfully performed his duties like the instant reason and the content of the Defendant’s attention. Therefore, even if the dismissal of the instant case constitutes a de facto disciplinary dismissal, the dismissal of the instant case has “justifiable cause” as stipulated in Article 23 of the Labor Standards Act, and the Defendant cannot be deemed to have abused or abused the authority of disciplinary discretion.

3. Determination on the claim for confirmation of invalidity of dismissal of this case

A. Character of this case and the nature of the dismissal of this case

1) According to the facts stated in Paragraph 1, the dismissal of this case was conducted based on Article 61(1)5 of the Personnel Regulations stipulating that the dismissal of this case was based on the provision that "if a person ordered to be issued a standby order is not assigned to a position or duties for the lapse of three months, it shall be dismissed, on the ground that the plaintiff's dismissal of this case constitutes "in extremely poor work performance or duties due to lack of capacity to perform duties" as stipulated in Article 62(1)1 of the Personnel Regulations.

2) In full view of the instant standby order and the removal from office of this case, which was issued pursuant to such personnel regulations, the termination of the labor contract relationship according to the employee’s unilateral intent against the employee’s will is practically a disciplinary dismissal, and thus, is subject to restrictions under the Labor Standards Act (see, e.g., Supreme Court Decision 2006Da25240, Sept. 21, 2007).

B. Whether the dismissal of this case is procedurally legitimate

1) Legal principles

Article 27(1) and (2) of the Labor Standards Act provides that "an employer shall notify in writing the grounds for dismissal and the timing of dismissal in order for the employer to dismiss a worker." This purport is to ensure that the employer is prudented to dismiss the worker, to properly respond to the dismissal, and to ensure easy and appropriate resolution of disputes surrounding the rear day by clarifying the existence of dismissal and the timing and reason for the dismissal. Therefore, when the employer notifies in writing the grounds for dismissal and the timing of the dismissal, the employer who intends to dismiss the worker must be able to know in detail what the notified worker is the grounds for the dismissal. In particular, if the employer intends to take disciplinary action, it shall state the specific facts and the details of the dismissal, which form the grounds for the dismissal, and it cannot be deemed sufficient that the person subject to disciplinary action only increases the personnel regulations (see Supreme Court Decision 2011Da42324, Oct. 27, 2011; 2015Da21160, Dec. 10, 2015).

2) Specific determination

In light of the legal principles as seen in paragraph (1) and the following circumstances revealed through the facts and evidence as seen in paragraph (1) above, it cannot be deemed that the Plaintiff was given an opportunity to substantially explain the grounds for disciplinary action during the process of issuing the instant standby order, which constitutes the actual dismissal of the Plaintiff, and the removal of the instant case, and that the Defendant cannot be deemed to have properly performed the duty to notify in writing under Article 27 of the Labor Standards Act, and therefore, the dismissal of the instant case ought to be deemed null and void as procedural

A) The letter of notification sent by the Defendant to the Plaintiff while notifying the Plaintiff of the instant standby order and the instant dismissal is as follows: * inventory management neglect, civil petitions arising from insufficient processing of export affairs among the entrusted sales, * the issuance of false statements of correction to the Plaintiff. As such, the Defendant’s order to issue a standby order pursuant to Article 62 of the Personnel Regulations (Evidence A) and the Plaintiff was not assigned to a position or duties for three months after the instant standby order was issued, there was only the Defendant’s dismissal (Evidence A6) pursuant to Article 61(1)5 of the Personnel Regulations. However, the notice of the instant standby order is merely abstract and brief description of the grounds, but does not include the time and specific facts at which the instant standby order and the dismissal of this case were issued. Furthermore, the notice of the instant dismissal does not include any specific details that support the instant dismissal.

B) From March 21, 2018 to January 24, 2019, the Plaintiff prepared and submitted the instant statement of reason, etc. to the Defendant ten times, and the Defendant paid attention to the Plaintiff three times from October 17, 2018 to January 25, 2019. However, such circumstance alone does not change from that point of view that the Plaintiff is specifically aware of the reason at the time when the Plaintiff was notified of the instant standby Order and the dismissal of the instant case, and that it could not sufficiently respond thereto. The Defendant notified the Plaintiff of the instant standby Order and the dismissal of the instant case. The Defendant did not mention the instant statement of reason, etc. and what part of the content of the Defendant’s cautioned to the Plaintiff as to the instant dismissal and the dismissal of the instant case, but did not mention whether the instant statement of reason and the dismissal of the Plaintiff were problematic, or whether the Plaintiff was involved in other actions of the Plaintiff unrelated thereto.

C) The Defendant did not provide the Plaintiff with an opportunity to vindicate by attending the personnel committee or submitting documents in the process of issuing the instant waiting order and determining the dismissal of the Plaintiff.

D) While the instant lawsuit continues, the Defendant asserted that the instant standby order is not a disciplinary dismissal, but the dismissal of the instant case belongs to the category of personnel order belonging to the inherent authority of the employer who is the personnel management authority, and that the dismissal of the instant case is not unlawful even if the Defendant did not perform the duty to notify in writing under Article 27 of the Labor Standards Act.

Therefore, the dismissal disposition of this case is without procedural justification, and therefore, it should be considered that the dismissal of this case is invalid without any need to further examine whether there is a ground for the defendant's assertion in the dismissal of this case, or whether the defendant's dismissal of this case is illegal because it deviates from or abused the discretion of

4. Determination on claims for unpaid wages

A. Since the occurrence of the duty to pay unpaid wages is null and void, the Defendant is obligated to pay the unpaid wages to the Plaintiff due to the dismissal of the Plaintiff.

B. The scope of unpaid wages

1) Due to the dismissal of the instant unpaid wages (from May 2019 to September 2020), the Plaintiff asserts that the detailed details of wages not paid from May 2019 to September 2020 are KRW 58,361,270 in total, as shown in attached Table 2. The Plaintiff asserted that the regular performance rate of August 2020 and KRW 990,400 in total, and KRW 1,980,880 in regular performance rate of September 2020 and KRW 200,000 in welfare expenses of September 2020 were not paid to the employees (Evidence 54). However, the Defendant did not pay regular performance rate and welfare expenses to the employees from August 2020, and that the Plaintiff’s unpaid wage claim did not provide any specific answer to the Plaintiff’s regular performance rate of August 20 and welfare expenses (Article 54).

2) According to the Plaintiff’s wage details stated in the attached Table 2, from October 1, 2020 to the time the Plaintiff is reinstated, the wages of KRW 2,376,960 per month from October 1, 202 to the time the Plaintiff is reinstated (=basic pay of KRW 878,800 + KRW 440,000 + position pay of KRW 662,00 + overtime pay of KRW 9,040,000 + KRW 99,040,000, and welfare pension of KRW 297,120).

Therefore, the Defendant is obligated to pay to the Plaintiff the interest accrued at the rate of 20% per annum as stipulated in Article 37(1) of the Labor Standards Act and Article 17 of the Enforcement Decree of the Labor Standards Act from September 8, 2020 to the date of full payment as the total amount of unpaid wages from May 1, 2019 to September 2020 and the amount of interest accrued at the rate of 58,361,270 won which the Plaintiff seeks from September 8, 2020 to the date of full payment, and the amount calculated at the rate of 2,376,960 won per annum from October 1, 2020 to the date of full payment.

5. Conclusion

Ultimately, the plaintiff's claim is justified within the scope of the above recognition, and the remaining claims are dismissed as it is without merit. It is so decided as per Disposition.

Judges

The presiding judge shall organize the Constitution;

Judges Park Byung-il

Judge Choi Jong-Un

Attached 1, 2, Omissions in the process of de facto lighting*

Note tin

(i) Article 62 (Air).

(1) Where an employee falls under any of the following subparagraphs, a standby may be issued without assigning a position or duties:

section 1.

1. When he lacks ability to perform his duties, and his performance or service record is extremely poor;

5. Where it is necessary for the administrative affairs of our cooperatives.

(2) A standby order shall be issued: Provided, That a resolution of the personnel committee shall be passed in cases of standby for reasons specified in paragraph (1) 1, 2, or 5.

shall be required.

(3) A standby shall be under the control of the head office.

(ii) Article 61 (Dismissal);

(1) Any of the following persons shall be dismissed:

5. Position or duty of a person against whom a standby order is issued under Article 62 (1) 1, 2 and 5 for whom three months have passed;

not being granted; or

(iii) Article 27 (Written Notice of Grounds for Dismissal, etc.)

(1) An employer who intends to dismiss workers shall notify in writing the grounds and time of dismissal.

(2) A written notice of dismissal for workers shall be effective pursuant to paragraph (1).

(3) Where an employer has made a written advance notice of dismissal under Article 26, specifying the grounds for and time of dismissal, it shall be removed.

A notice under paragraph (1) shall be deemed given.

4) Article 23 (Restrictions on Dismissal, etc.)

(1) An employer shall, without justifiable cause, dismiss, lay off, suspend, transfer a worker, reduce wages, and take other disciplinary measures (hereinafter referred to as "unfair dismissal").

No person shall engage in any of the following activities:

5) There is no provision that the Defendant should inform the disciplinary person of the grounds for disciplinary action in advance under the personnel regulations or the rules of employment.

Ga. The Supreme Court cited by the Defendant’s assertion that the dismissal of the instant case is lawful even if the Defendant did not give written notice.

Conclusions (Supreme Court Decision 91Da29071 Decided March 27, 1992, 91Da4775 Decided April 14, 1992, 2016Du2016 Decided June 25, 2020

56042 decided May 9, 2013, 2012Da64833 decided May 9, 2013) cannot be applied as it is to this case.

29071 and 91da4775 Judgment are the written notification system of reasons for dismissal as provided in Article 27(1) and (2) of the Labor Standards Act.

It was introduced before April 11, 2007, and ② Decision 2016Du56042 Decided April 2, 201.

In fact, the personnel committee has been aware of and could sufficiently cope with it.

The Supreme Court Decision 2012Da64833 Decided that the plaintiff was given an opportunity to make a statement and to vindicate the suspected facts of the disciplinary action.

In that the subject of dispute is not a disciplinary action, but a provisional personnel order disposition, respectively, the facts of the case

This is because the guidance is different.

참조조문

참조판례

-대법원 2007. 9. 21. 선고 2006다25240 판결