Han-soo Co., Ltd. (Attorney Choi Jae-han et al., Counsel for the plaintiff-appellant)

The Chairman of the National Labor Relations Commission

Defendant Intervenor 1 and two others (Law Firm Duc, Attorneys Yellow-ho et al., Counsel for the defendant-appellant)

June 15, 2017

Seoul Administrative Court Decision 2016Guhap63026 decided March 24, 2017

1. The Intervenor’s appeal is dismissed.

2. The costs of appeal are borne by the Intervenor joining the Defendant.

1. Purport of claim

The part of the decision made by the National Labor Relations Commission concerning the application for retrial on March 28, 2016 which was filed by the Central Labor Relations Commission as to the application for remedy for unfair dismissal by Han-chul, Inc., Ltd., the part concerning the Plaintiff and the Intervenor joining the Defendant (hereinafter referred to as “ intervenors”) shall be revoked.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation of the first instance judgment

The reasoning for the court’s explanation on the instant case is as follows, except for the addition of the judgment on the allegations by the intervenors in Paragraph (2) below, and thus, it cites it as it is in accordance with Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act (other grounds asserted by the intervenors in this Court are not significantly different from the contents of the first instance court, and even if the evidence submitted by the first instance court and this court are examined, the judgment of the first instance court rejecting the allegations by the Defendants and intervenors

2. Judgment on the Intervenor’s assertion

The Intervenor asserts to the effect that it is unfair to dismiss the Plaintiff on the ground that the Intervenor did not comply with the Plaintiff’s work instruction or personnel order merely because the Intervenor was an employee who is practically difficult to conduct any act different from Nonparty 2 and Nonparty 10 in the process of dispute over management rights.

However, comprehensively taking account of the overall purport of the statements and arguments set forth in Article 19, 20, 26, 63, 64, and Eul evidence Nos. 1 and 2 (including each number), the Plaintiff was legally dismissed from office as a director on July 25, 2014 through a resolution of a provisional general meeting of shareholders; on the same day, Nonparty 4 and 5 were lawfully appointed as a director; thereafter, on July 29, 2014, the board of directors held, appointed Nonparty 1 as a representative director; on July 29, 2014, the above contents were notified to the number of officers and employees including the Intervenor; the number of officers and employees of the Plaintiff, including the Intervenor; on August 11, 2014, Nonparty 2 and Nonparty 3 were legally dismissed from the total number of officers and the number of employees of each company, and on the same day, Nonparty 4 and Nonparty 11 were duly appointed as a total number of executive partners and the number of employees of each company.

According to the above facts, even if the intervenor was instructed by Nonparty 2, the plaintiff's representative director, the second executive partner, and the second executive director, and the second executive director, respectively, become aware of the lawful change of the facts, so long as the plaintiff's duty to provide labor under the labor contract was not fulfilled for a long time as the plaintiff's management did not perform his/her duty to provide labor under the labor contract as seen earlier (the intervenor 1: 1-3, 1-4; the intervenor 3: 2: 2-1; Disciplinary Reason No. 2: 3-1; Disciplinary Reason No. 2: 3-1; Disciplinary Reason No. 2: the intervenor 2: 3-1); each of such Disciplinary Reason is deemed liable to the extent that the plaintiff's employment relationship cannot be continued under the social norms even

3. Conclusion

Therefore, the plaintiff's claim is justified, and the judgment of the court of first instance is just, and the intervenor's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Yoon Sung-won (Presiding Judge)