(영문) 서울행정법원 2014.2.13.선고 2012구합43864 판결

The decision made by the National Labor Relations Commission on November 1, 2012 between the plaintiff and the defendant joining the defendant (hereinafter referred to as "the intervenor") shall be revoked with respect to the case of the application for remedy for unfair dismissal which was filed by the National Labor Relations Commission.

Reasons

1. The circumstances leading to the decision on reexamination of this case

A. The Plaintiff is a company that employs more than 200 full-time workers and engages in the manufacture and sale of electricity, electronic parts, and materials, and the Intervenor is a worker who works for the Plaintiff Company.

B. On November 1, 2011, the Plaintiff and A trade union (hereinafter “trade union”) agreed with the following contents in relation to the implementation of honorary retirement.

1. Implementation period: The number of persons eligible for voluntary retirement on November 18, 201 through November 24, 2011: All the employees; 3. Number of persons eligible for voluntary retirement on November 24, 201: approximately 100 persons: 4. Honorable retirement date on April 1, 201: The average wage standard, the number of years of service and age, and the date of counting;

C. At the time from November 18, 201 to November 24, 2011, the Plaintiff held an interview related to voluntary retirement for 156 production workers among 228 employees belonging to the Plaintiff (including 4 executives, 2 advisers, 5 members of the labor union and 5 members of the secretariat, 14 employees of the restaurant, and 14 employees of the guard).

D. Among the employees belonging to the Plaintiff, 214 persons, excluding the total number of 14 employees, including the executives, advisers, the chairperson of the labor union, the secretary general, the restaurant workers, and the guards (228 all employees - 14 employees), including the intervenors, submitted a written statement containing the content that the Plaintiff does not raise any civil or criminal objection against the Plaintiff, such as a written application for voluntary retirement, resignation, and the Plaintiff’s output in the same form.

E. On November 29, 201, the Plaintiff, among 209 persons who applied for voluntary retirement, selected 79 persons, including intervenors, as persons eligible for voluntary retirement, and notified on November 29, 201 that the said 79 persons accepted the written resignation (hereinafter “instant voluntary retirement”) as of November 28, 201.

F. On February 22, 2012, the Intervenor filed an application for remedy with the Gangwon Regional Labor Relations Commission by asserting that the voluntary retirement of this case constituted unfair dismissal, but the Gangwon Regional Labor Relations Commission dismissed the Intervenor’s application for remedy on May 10, 2012.

G. On May 30, 2012, the Intervenor appealed and filed an application for reexamination with the National Labor Relations Commission as to May 30, 2012. On November 12, 2012, the National Labor Relations Commission accepted the written resignation submitted by the Intervenor even though the Intervenor knew that the Intervenor’s expression of intent to resign to the Plaintiff constitutes a strue declaration, and the Plaintiff also accepted the written resignation. Therefore, the instant voluntary retirement was accepted on the ground that the Intervenor’s application for reexamination was in the form of voluntary dismissal from office and constitutes a de facto unfair dismissal (hereinafter “instant decision for reexamination”).

[Ground of recognition] Facts without dispute, Gap evidence 1, Gap evidence 2, Gap evidence 6, Eul evidence 2, Eul evidence 2 (including branch numbers, if any; hereinafter the same shall apply), the purport of whole pleadings

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

A. The plaintiff's assertion

The Plaintiff, despite its efforts to maintain employment in a management crisis due to the economic depression, was inevitable to implement the instant voluntary retirement, as it is difficult for the Plaintiff to improve the management conditions. The Intervenor voluntarily presented the written resignation by fully aware of the Plaintiff’s management status, the written application for voluntary retirement, the written resignation, and the respective notes. Therefore, the instant voluntary retirement constitutes the termination of a labor relationship by agreement between the Plaintiff and the Intervenor. On a different premise, the instant decision on reexamination was unlawful.

(b) Fact of recognition;

The following facts may be acknowledged in full view of each of the evidence, Gap evidence No. 4, Eul evidence No. 3 through No. 15, and the purport of the whole pleadings, in which there is no dispute between the parties, or in which evidence No. 4, No.

1) When the management status has deteriorated, the Plaintiff entered into a collective agreement with the labor union on April 21, 201 to April 29, 201 (the first: from April 21, 2011 to April 22, 2011; the second: from April 26, 2011 to April 27, 2011; the third party from April 28, 201 to April 29, 201; the Plaintiff entered into a temporary collective agreement with the Plaintiff on March 21, 201 to April 29, 201, wherein 65 workers of the Plaintiff were to participate in the education and training; the Plaintiff entered into a temporary collective agreement with the Plaintiff on May 1, 2011 to May 31, 2011; the Plaintiff and the second party on June 1, 2011 to June 31, 2011 to June 31, 2011.

1. Agreement 1: Suspension of the payment of a subsidy for a management position (person in charge) allowance from July 201 to July 201: From June 3, 2011: Suspension of the payment of a subsidy for a mobile phone (person in charge of at least the team leader and operation): From June 2011 to June 4): Suspension of the payment of a subsidy for a mobile phone (person in charge of at least the team leader and operation): From June 2, 2011 to June 2: Agreement 2, 2011), Article 73 (Child’s School Expense, Senior (2-3 years), Special (2-3 years), and April National University’s School Expense: Article 71 (Support for Dormitory Management Expenses) of 10% on March 4, 201, quarterly suspension of 4/4 temporarily: 10% on July 18, 201 to 12, 2011; 20% on May 10, 2017 (payment of annual salary).

3) A regular director, C head of division, and D head of the instant case conducted an interview with the instant honorary retirement. B, prior to holding the interview, the head of the production-based management agency stated the Plaintiff’s business difficulties and necessity to reduce the number of employees, etc., and urged workers to submit an application for voluntary retirement and a written resignation from the workers. Accordingly, the production-based management officer recommended the employees under his/her control to explain the situation of the Plaintiff Company and submit an application for voluntary retirement and a written resignation.

4) An interview related to the voluntary retirement was conducted by an individual. At the time of the interview, the Plaintiff printed out the application form for voluntary retirement, resignation, and letter of resignation in the place of the interview. The Plaintiff solicited the visitors to the interview at the time of the interview to submit the application form for voluntary retirement and the necessity to reduce the number of persons, etc., and the Plaintiff could be dismissed without receiving the application form for voluntary retirement and the written resignation. In addition, some of the persons subject to the interview asked B and C whether others submitted the application form for voluntary retirement and the written resignation. In addition, B and C submitted most of the other persons, and C also expressed that they submitted the application form for voluntary retirement and the written resignation to the effect that they submitted the written resignation.

5) On December 9, 2011, the Plaintiff paid retirement allowances, annual allowances, and honorary retirement consolation benefits to 79 persons who voluntarily retired.

6) The Plaintiff again paid job offer allowances, vehicle subsidies, mobile phone subsidies, school expenses, and dormitory management expenses, which were temporarily suspended in accordance with the collective agreement set forth in the foregoing paragraph (2) from February 2012. In addition, after the voluntary retirement of the instant case, the Plaintiff registered job offer advertisements with the content that two foreign workers are employed in the Internet site (www. joint and several kooc.co.co.kr) on January 17, 2012. On February 8, 2012, 2012, the Plaintiff advertised job offer advertisements with the content that he/she is employed in the regional newspapers on May 15, 2012, and May 30, 2012, and June 1, 2012.

D. Determination

The truth in the declaration of intention of the truth refers to the idea of the voter who intends to express a specific content, and it does not mean that the presenter is true in mind.

(2) In light of the legal principles as seen earlier, the part of the Intervenor’s voluntary retirement application and the part of the Intervenor’s voluntary retirement application and the part of the Intervenor’s voluntary retirement application and the part of the Intervenor’s voluntary retirement application, the part of the Intervenor’s voluntary retirement application and the part of the Intervenor’s voluntary retirement application and the part of the Intervenor’s voluntary retirement application constitute the part of the Intervenor’s voluntary retirement application and the part of the Intervenor’s voluntary retirement application, and the part of the Intervenor’s voluntary retirement application and the part of the Intervenor’s voluntary retirement application constitute the part of the Intervenor’s voluntary retirement application and the part of the Intervenor’s voluntary retirement application and the part of the Intervenor’s voluntary retirement application, and the part of the Intervenor’s voluntary retirement application and the part of the Intervenor’s voluntary retirement application and the part of the Intervenor’s voluntary retirement application constitute the part of the Intervenor’s voluntary retirement. However, the part of the Intervenor’s voluntary retirement application and the part of the Intervenor’s voluntary retirement application and the part of the Intervenor’s retirement.

1) B, before conducting the interview, urged a person in charge of production management to submit an application for voluntary retirement and a written resignation from his employees, and accordingly, the person in charge of production management seems to have strongly recommended his employees to submit the application for voluntary retirement and a written resignation. At the time of the interview held by each individual, the Plaintiff had already prepared and printed out at the above interview place, and B had referred to the purport that, while soliciting the person in charge of the interview at the time of the interview to submit an application for voluntary retirement, a written resignation, and a written resignation, B would be able to receive the voluntary retirement benefits without receiving the written voluntary retirement benefits if he did not submit the written application for voluntary retirement and a written resignation. B, C, the other person in charge of the interview, including the Intervenor, submitted most of the written application for voluntary retirement and a written resignation (in particular, C himself submitted an application for voluntary retirement and a written resignation). Considering these circumstances, the Plaintiff appears to have requested the Plaintiff to submit the written application for voluntary retirement and a written resignation at the time of the interview.

2) The Plaintiff re-paid work allowances, vehicle subsidies, mobile phone subsidies, school expenses, and dormitory management expenses, which were temporarily discontinued pursuant to the collective agreement from February 2012 to July 13, 2011, and employed overseas workers and production workers after the voluntary retirement of this case. Although the management status of the Plaintiff Company was deteriorated, the management status of the Plaintiff Company was not deteriorated to the extent that wages are not not paid to the employees, and the Plaintiff does not seem to have actually failed to pay wages to the employees at the time of the voluntary retirement of this case. In light of the above, it is not deemed that 209 workers, including the intervenors, including the Intervenor, were forced to retire from the Plaintiff Company, and the management status of the Plaintiff Company was significantly aggravated.

3) From among 214 persons other than 14, 209 members, including 209 members, including 209/209/214 X100 (%) and 209/214 X100 (%) the proportion is 97.6% (i.e., 209/209/214X100), the number of employees is 3/6 months’ wages; E, who are less than 5 years of continuous service, submitted an application for the voluntary retirement and a letter of resignation; E, who submitted an application for the voluntary retirement and a letter of resignation, has most dependents; it is difficult to view that there was a company’s intent to resign or to resign from the Plaintiff’s company, including the Intervenor, in light of the fact that it appears impossible to operate the Plaintiff’s company itself if 209 members, including the Intervenor, have retired.

4) Although the Plaintiff intended to provide approximately 100 persons to be recruited for voluntary retirement, the Plaintiff conducted an individual interview related to voluntary retirement with respect to 156 workers in production, and received an application for voluntary retirement and a letter of resignation from 209 persons, 79 persons among them, and accepted the application for voluntary retirement and a letter of resignation by selecting 79 persons. In light of the process of the instant voluntary retirement, it is reasonable to view that the Plaintiff received a written resignation en bloc from the entire workers, rather than having received a voluntary application for voluntary retirement from the workers, and subsequently dismissed some of the workers.

3. Conclusion

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