2016Guhap61396 Revocation of the Request for Remedy against Unfair Dismissal

A

The Chairperson of the National Labor Relations Commission

B A.

March 10, 2017

April 14, 2017

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit are assessed against the Plaintiff, including the part resulting from the supplementary participation.

The decision made by the National Labor Relations Commission on March 8, 2016 between the Plaintiff and the Intervenor (hereinafter referred to as the “ Intervenor”) was revoked with respect to the case of application for the reexamination of unfair dismissal dismissal dismissal dismissal dismissal dismissal dismissal dismissal dismissal dismissal dismissal dismissal dismissal dismissal dismissal dismissal dismissal dismissal dismissal dismissal dismissal dismissal dismissal dismissal dismissal dismissal dismissal dismissal.

1. Details of the decision on retrial;

A. An intervenor is a company that employs approximately three thousand full-time workers and engages in shipbuilding and construction as its main business.

B. On July 3, 1996, the Plaintiff joined the construction sector of the Intervenor and served as the two team deputy head from November 2, 2009 to April 14, 2013, and was in charge of the management of advance payment in the construction site, the selection of bidders, the bidding process, and the payment of progress payment in the construction site. The Plaintiff served as the secretary for the joint growth promotion administration from April 11, 201 to May 6, 2014 (one concurrently with the two teams of materials) while serving as the secretary for the joint growth promotion administration (one concurrently with the materials deputy head from April 11, 201 to April 14, 2013).

C. From September 13, 201 to November 15, 2013, the Plaintiff conducted golf multiple times with the representative director D, etc. of C Co., Ltd. (hereinafter referred to as “C”), a subcontractor of a witness company, from September 13, 201 to November 15, 2013.

D. C around May 2015, at the 8th line, set up a banner demanding the settlement of construction cost on the part of the Intervenor Company’s front door, and around July 2015, C installed a banner demanding the return of golf expenses to the Intervenor’s employees affiliated with the Intervenor.

E. On July 6, 2015, the Intervenor received the document “A (Plaintiff) golf expenses” from C in the course of investigating golf entertainment expenses with respect to its employees. The said document stated that C paid KRW 95,264,640 to the Plaintiff’s golf entertainment expenses on a total of 56 occasions from September 13, 2011 to November 15, 2013.

F. On August 12, 2015, the intervenor held the fourth personnel committee in the first instance trial (hereinafter referred to as “the committee for the first instance trial”) in order to take disciplinary action against the Plaintiff, and the committee for the first instance trial decided to take disciplinary action against five employees, including the head of the class E, and three managers who neglected the management and supervision of D and golf upon the Plaintiff’s introduction. Accordingly, on August 21, 2015, the intervenor notified the Plaintiff of the disciplinary dismissal as follows (hereinafter referred to as “instant disciplinary action”).

The following matters shall be notified as follows in accordance with the procedures prescribed by Article 6 of the Disciplinary Regulations and the detailed regulations of the Personnel Committee, which were held on August 12, 2015, of the notification of disciplinary action (hereinafter referred to as "written notification of disciplinary action"): The following matters to be deliberated on August 2, 2015: The details of disciplinary action related to the golf-related area: The details of dismissal on August 21, 2015.

G. As the Plaintiff’s dismissal of the instant disciplinary action was unfair, the Plaintiff filed a petition for reexamination with the Intervenor on September 3, 2015, and filed a petition for remedy with the Seoul Regional Labor Relations Commission on September 17, 2015 (Seoul 2015, Seoul 2485).

H. On September 22, 2015, the Intervenor, upon the Plaintiff’s request for review, held the sixth Personnel Committee in 2015 (hereinafter “Re-Examination Personnel Committee”), and the Re-Examination Personnel Committee decided to dismiss the Plaintiff again. Accordingly, on September 25, 2015, the Intervenor notified the Plaintiff of the disciplinary dismissal as follows.

On September 22, 2015, according to the procedures prescribed by Article 6 of the Disciplinary Regulations and the Regulations of the Personnel Committee, a notice of disciplinary action (hereinafter referred to as the "Notice of Disciplinary Action") has been made on September 22, 2015 as follows: The disciplinary action shall be notified to the company on September 25, 2015, subject to the deliberation of the sixth Personnel Committee of 2015 held on September 22, 2015: The grounds for disciplinary action shall be as follows: (a) self-profit by receiving golf-related and entertainment from a person related to his/her duties (a party-related company); (b) violation of the law-abiding and ethics regulations; (c) violation of the law-abiding and ethics regulations; (d) violation of the law-abiding and ethics regulations; (d) violation of the law-abiding and ethics regulations; and (e) violation of the employment regulations of administrative service group technology: The period of dismissal on September 25, 2015.

I. On November 12, 2015, Seoul Regional Labor Relations Commission dismissed the Plaintiff’s application for the dismissal of the instant disciplinary action.

(j) On December 14, 2015, the Plaintiff filed an application for reexamination with the National Labor Relations Commission seeking cancellation of the first inquiry tribunal (Central 2015, 1295), but the National Labor Relations Commission dismissed the Plaintiff’s application for reexamination on March 8, 2016 (hereinafter “instant decision for reexamination”).

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, Eul evidence Nos. 3, 4, 8, 10, 11, 12, 13, 14, 15, and the purport of the whole pleadings

2. Whether the decision on the retrial of this case is lawful

A. The plaintiff's assertion

1) The Intervenor did not state what kind of act of the Plaintiff in the notice of disciplinary action in violation of the penal rules, and did not state the time of dismissal. The Plaintiff was present at the first instance trial disciplinary committee and provided only an opportunity to vindicate golf trading with D, and was unable to exercise an adequate right of defense against other disciplinary grounds, such as “inciting loss of the company” and “defluence of the company” as stated in the notice of disciplinary action. Accordingly, the instant disciplinary action is null and void because it did not comply with the duty of written notification of dismissal under Article 27 of the Labor Standards Act.

2) At the time of running golf with D, the Plaintiff was in the position of the Intervenor’s 2 Team Deputy Director at D and did not perform the Plaintiff’s bid and contract-related duties. Therefore, D is not a person related to the Plaintiff’s duties, and even if a person related to family duties is a person related to the Plaintiff’s family duties, the Plaintiff cannot be deemed to have received golf-related or been provided with entertainment because it is irrelevant to the Plaintiff’s duties as a private-friendly relationship with D. Moreover, the Plaintiff cannot be deemed to have inflicted damage on the company’s reputation or incurred losses, and it is unclear whether the Plaintiff violated compliance and ethical management regulations, integrity white rules, and employment rules. Accordingly, there is no ground for disciplinary action against the Plaintiff.

3) On October 1, 2014, the Intervenor received a letter of a golf-related match from C in September 2014, and issued the Plaintiff as his branch office in Yong-Nam on the ground of this, and excluded the Plaintiff from the examination of the head of the division’s attack around February 2015. Accordingly, the instant disciplinary dismissal is a double disciplinary action against the instant disciplinary action, which violates the principle of res judicata or the principle of the prohibition of double punishment.

4) Even if the grounds for the dismissal of the instant disciplinary action on household affairs are recognized, there is an error of deviation from or abuse of discretionary power due to excessive determination.

B. Relevant statutes

/ Labor Standards Act

Article 23 (Restriction on Dismissal, etc.)

(1) An employer shall not, without justifiable cause, dismiss, lay off, suspend, transfer a worker, reduce wages, or take other disciplinary measures (hereinafter referred to as "unfair dismissal, etc.") against a worker.

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

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

(c) Fact of recognition;

1) The main contents relevant to the instant case in the Intervenor Company’s detailed enforcement rules, compliance and ethics management rules, employment functional group rules on administrative technology, and personnel committee rules are as follows.

Article 6 (Disciplinary Action) (1) of the Enforcement Rule of the Punishment Act: A person falling under any of the following subparagraphs shall be subject to disciplinary action. 2.2. 15. A person who violates his or her or another person's profit-making regulations by taking advantage of his or her position or position; B. A person subject to disciplinary action; a person subject to disciplinary action; (1) A person may be deprived of his or her status as an employee; (2) a person subject to disciplinary action may be reduced or exempted if he or she falls under any of the following subparagraphs:

2) The Intervenor entered into a construction contract with C on a total of seven cases as listed below, and on a total of 28.9 billion construction costs (based on November 4, 2015).

A person shall be appointed.

3) On December 31, 201, the Plaintiff received six-time official commendation from the Intervenor, such as receiving V official commendation.

4) On October 1, 2014, the Intervenor issued the Plaintiff’s personnel administration from the Fund Team to the Yong-Nam branch. The Intervenor held the Round Review Committee around February 2015, but the Plaintiff was not included in the subject of special winning.

[Reasons for Recognition] Facts without dispute, Gap evidence 2, Eul evidence 2, Eul evidence 2, 6, 7, 16, 17, and the purport of the whole pleadings

D. Determination

1) Whether dismissal violates the duty of written notice of dismissal

A) Relevant legal principles

In light of the fact that the facts of misconducts which are the grounds for disciplinary dismissal are considered to have violated various obligations under the company's standing regulations at the same time, it is sufficient that the specific facts of the grounds for disciplinary dismissal are stated to the extent that they are distinguished from other facts, and whether the facts of the misconducts constitute a case where the facts of the misconducts in the company's standing regulations are in violation of any of the provisions of the company's standing regulations, it is not necessary to enter the relevant provisions and make a statement daily (see Supreme Court Decision 2004Du14380, Mar. 24, 2005

The purpose of Article 27 of the Labor Standards Act is to ensure that an employer has the effect of written notification of the grounds for and timing of dismissal in order for the dismissal of a worker. This is to ensure that the employer is careful in dismissing the worker through written notification of the grounds for dismissal, etc., and that the dispute surrounding the existence, time and reason of dismissal can be resolved in an appropriate and easy manner after the dismissal, and that the worker can properly respond to the dismissal. Therefore, even if the written notification of dismissal states somewhat insufficient matters concerning the grounds for and timing of dismissal, in light of the circumstances before and after the dismissal, if the grounds for and timing of dismissal are clearly specified and the worker is sufficiently aware of them, such dismissal cannot be deemed unlawful.

B) Whether written notice of grounds for dismissal is given

In light of the following circumstances known from the above facts, it is reasonable to view that even if the grounds for dismissal of the instant disciplinary action are not explicitly stated in the written notification of disciplinary action of the first instance court, the Plaintiff was sufficiently aware of the grounds for dismissal through the written notification of disciplinary action of the first instance court, and accordingly, the Intervenor did not notify the grounds for dismissal in writing.

(1) The summary of the grounds for dismissal against the Plaintiff is that “the Plaintiff was subject to golf contact by using his duties, who is a job-related person,” and the Plaintiff was aware of the fact that there was a golf contact with him through the banner published by C prior to the instant disciplinary action, and submitted his position in the course of the investigation by the Intervenor’s Audit Team. On August 12, 2015, the Intervenor was present at the first instance trial personnel committee and was given an opportunity to explain the developments leading up to golf, cost burden relation, etc. Accordingly, the Plaintiff was sufficiently aware of the specific facts and details of the dismissal, which are the substantial reasons for the dismissal, through the statement of “the deliberation on the instant disciplinary action related to golf contact”.

(2) The notice of a new trial does not include the grounds such as causing loss of a company or defamation of a company, which are stipulated as the grounds for disciplinary action in the notice of a new trial, but such grounds are incidental to the "act of receiving golf-related premises" and cannot be deemed as an independent ground for dismissal. Therefore, even if the intervenor did not specify the grounds for dismissal in the notice of a new trial, it cannot be said that the plaintiff did not notify the grounds for dismissal, and as long as the plaintiff was given sufficient opportunity to vindicate the golf-related premises themselves, it cannot be said that there was an obstacle to the plaintiff

(3) In light of the legal principles as seen earlier, even if the intervenor did not indicate in daily the violation of any provision of the company regulations, the grounds for dismissal are not specified.

C) Whether written notice of dismissal is given

According to the facts established earlier, the instant disciplinary action is deemed to take effect on August 21, 2015, for which the intervenor notified the Plaintiff of the resolution of the personnel committee at the first instance trial pursuant to Article 14 of the Rules of the Plaintiff’s Personnel Committee. However, the written notice of disciplinary action at the first instance merely stated “ August 21, 2015,” but did not specify any separate time of dismissal, the Plaintiff could have sufficiently known that he was dismissed on August 21, 2015, which is the date of the said notice. Therefore, it cannot be said that the Intervenor did not notify the time of dismissal in writing.

D) Sub-determination

Therefore, since the dismissal of the instant disciplinary action cannot be deemed to violate Article 27 of the Labor Standards Act, the Plaintiff’s above assertion is without merit.

2) Whether to recognize grounds for disciplinary action

In light of the following circumstances known from the above facts, it is reasonable to deem that the Plaintiff was provided with golf entertainment and entertainment by job-related persons C by taking advantage of his/her duties. Therefore, the grounds for disciplinary action are recognized.

A) On September 13, 2011, to November 15, 2013, the Plaintiff, along with D, worked as a material team deputy head and deputy head in charge of the subcontractor’s selection, contract work, evaluation of subcontractor’s performance, etc., and as a secretary for the joint growth promotion administration office in charge of evaluating the adequacy of the subcontract price. C entered into six cases of a subcontract contract with the Intervenor, which is about KRW 25.6 billion in total.1) Accordingly, C is a person related to the Plaintiff’s duties and is obviously an organization that is related to the Plaintiff’s duties and is to enter into a contract with the company. Therefore, C is a person related to his duties.

B) The Plaintiff mainly conducted golf in a golf course with D’s membership, and there is no evidence to acknowledge that the Plaintiff was partially borne by himself/herself. Therefore, the Plaintiff appears to have received golf-related relations from C, a duty-related person, and it is difficult to view the Plaintiff as having a golf-related relationship with D. As such, the Plaintiff’s act of receiving golf-related relationships constitutes an act of unfairly seeking profit by using his/her position or position, thereby violating Article 6(1)2 and 15 of the Detailed Regulations, Article 7(1) of the Compliance and Ethical Management Regulations, and Article 7(4) of the Regulations on the Employment of Administrative Technology Occupational Groups.

C) The facts that C installed banners on the front 8th line of the Intervenor Company, and the employees received golf-related premises were made known to the general public. Accordingly, the Intervenor Company may be deemed to have suffered tangible and intangible damage on the part of the Intervenor Company, inasmuch as the Intervenor Company’s trust in the fairness of the Intervenor Company and the general consumers was damaged and the company’s land price was damaged.

3) Whether double disciplinary action violates the principle of prohibition against double Jeopardy and prohibition against double punishment

In a case where a double disciplinary measure is taken, it violates the principle of prohibition against double Jeopardy or the principle of prohibition against double punishment, and thus, in order to constitute a double disciplinary measure, the preceding and subsequent disciplinary measures must be both a disciplinary measure in its legal nature, and its validity should be confirmed without revocation of the preceding disciplinary measure. The same fact of suspicion of a prior disciplinary measure and subsequent disciplinary action should be identical (see Supreme Court Decision 99Du10902, Sept. 29, 200).

On the premise that the intervenor's issuance of the plaintiff to Yong-Nam branch office or the conduct except in the examination of dignity does not constitute a disciplinary action, its legal nature does not constitute a disciplinary action, and thus, it cannot be deemed that the disciplinary action in this case is a double disciplinary action.

Even if there is room to view that a disciplinary measure, such as a transfer order or a promotional examination, constitutes a disciplinary measure, the following circumstances, which can be seen by comprehensively considering the facts of the above recognition and the purport of the entire argument in Eul-B evidence 1-3, i.e., there is no evidence to deem that the intervenor was aware of the plaintiff's misconduct by receiving a written investment from C around September 2014, and the plaintiff was notified of the fact that the above personnel order was due to C's investment at the meeting with W, which was the second head of the personnel management team of the intervenor at the time of the issuance of Yong-Nam branch office on October 1, 2014. However, W did not notify the plaintiff of the fact that the plaintiff was not aware of the facts related to C, and it is difficult to say that the plaintiff was not aware of the fact related to C, and that there was no evidence to view that the plaintiff's act of double promotion was excluded from the Plaintiff's disciplinary measure or there was no evidence to view that the plaintiff's act of double promotion was excluded from the Plaintiff's.

Therefore, the plaintiff's assertion does not seem to have any mother or reason.

4) Whether disciplinary action is appropriate

In a case where a disciplinary measure is taken against a person subject to disciplinary action, the decision to take a disciplinary measure is at the discretion of the person having the authority to take the disciplinary measure. However, if the person having the authority to take a disciplinary measure as an exercise of discretionary power significantly lacks validity under the generally accepted social norms, and thus it is illegal to take a disciplinary measure. If the disciplinary measure is deemed unlawful beyond the scope of discretionary power because it considerably lacks validity under the generally accepted social norms, it is necessary to determine the contents of the disciplinary measure as a whole, based on the specific cases, such as the contents and nature of the alleged misconduct causing the disciplinary measure, the purpose of achieving the disciplinary measure, the criteria for a disciplinary measure, etc., where it can be objectively and objectively recognized that the contents of the disciplinary measure are obviously unfair (see Supreme Court Decision 200Da60890, Aug. 23, 2002).

In light of the following circumstances revealed from the above facts, the disciplinary dismissal of this case does not seem to be illegal as a disposition that deviates from or abused discretion.

A) The plaintiff asserts that the disciplinary dismissal in this case is unfair because other persons subject to disciplinary action who are superior to himself was subject to salary reduction disposition. However, the plaintiff introduced Dong Fee E to D, which is an employee of Dong Fee E, and introduced them to conduct golf, and received golf contacts over several times for a long period exceeding two years, and the contact amount is not much considerable. On the other hand, other persons subject to disciplinary action merely conducted golfs with D, or was liable for negligence in the management and supervision of his employees. Thus, the degree of the act of misconduct cannot be said to be more severe than that of the plaintiff. Thus, the disciplinary dismissal in this case cannot be said to be contrary to equity.

B) The Plaintiff asserts that it was good for the Plaintiff to receive a total of 6 times official commendation, such as V official commendation, but the issue of whether to reduce or exempt disciplinary action pursuant to Article 6(9) of the Enforcement Rule of the Monetary Punishment Act is basically attributable to the discretion of the authorized person having authority over disciplinary action, and the Plaintiff’s denial of his/her grounds for disciplinary action, and it cannot be deemed that there was any error even if the Intervenor did not reduce or exempt disciplinary action against the Plaintiff.

C) The Plaintiff asserts to the effect that it is unreasonable to dismiss the Plaintiff for the same reason as the Plaintiff, even though the Plaintiff was issued as the Yong-Nam branch due to C’s investment, and was subjected to a unfavorable disposition that was excluded from the equition examination. However, as seen earlier, unless there is any evidence to prove that the Plaintiff’s exclusion from the issuance of a transfer order and the promotion examination is related to the grounds for the instant disciplinary action, such circumstance is not considered in the disciplinary action.

D) C appears to have received direct and indirect assistance from the Plaintiff in concluding a construction contract on a total of KRW 25.6 billion between the Intervenor and the Intervenor, and even if the Plaintiff did not grant any preferential treatment to C, the Plaintiff’s act constitutes a significant act that impairs the Intervenor’s trust in the fairness, and constitutes a cause attributable to the Plaintiff to the extent that it cannot continue the labor contract by social norms.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

The judges of the presiding judge;

Judges Kim Jae-nam

Judges Gangseo-gu

1) Of the seven construction contracts with C as of November 4, 2015 as of November 4, 2015, the remainder of the construction contracts, other than the construction contracts of Section 2 of the I apartment construction works for which the contract was concluded before September 13, 2011, constitutes the construction contracts.