(a) Validity of a juristic act contrary to the prohibition of unfair labor practices under Article 39 of the Trade Union Act;

(b) Where a dismissal disposition is null and void, the scope of wages for which workers may claim payment.

(c) Where the dismissal causes an illegal mental pain, thereby constituting a tort;

A. In light of the fact that Article 39 of the Trade Union Act provides for the prohibition of unfair labor practices as an aim of securing the three basic rights to work under the Constitution, and Articles 42 and 43 of the same Act provide for prompt remedy for unfair labor practices in order to obtain prompt remedy for infringement of rights, this is a mandatory law, which is an effective provision, and thus, a juristic act violating the above provision is not effective under the private law, and as long as the juristic act as an unfair labor practice with respect to workers is null and void as it is an unfair labor practice, it does not need to further determine whether there exists a justifiable reason under Article 27 of the Labor Standards Act.

B. Where a dismissal disposition is null and void, wages for which an employee may claim payment refer to wages stipulated in Article 18 of the Labor Standards Act. As such, the total amount of wages to be included in the calculation of average wages under Article 19 of the same Act shall be included in all, and it shall not be limited to ordinary wages.

C. In a case where the dismissal is null and void because an employer violates the prohibition of disadvantageous treatment under Article 39 of the Trade Union Act, which is a mandatory provision, and the employer unfairly dismisses or disadvantage the worker in violation of the prohibition of disadvantageous treatment, the employer is merely a ground on the surface, and in substance, it constitutes a tort in relation to the worker by taking the means of disciplinary action on the ground of dismissal, etc. under the intent to exclude the worker from the workplace on the ground that the worker was engaged in legitimate trade union activities. In a case where it is obvious that abuse of the right of disciplinary action cannot be remarkably acceptable under our sound social norms or social norms, such abuse of the right of disciplinary action is not limited to the denial of the validity of the unfavorable treatment, such as dismissal, but it is illegal to inflict mental pain on the other party, and constitutes a tort in relation to the worker.

A. Articles 39, 42, and 43 of the Trade Union Act; Article 538(1) of the Civil Act; Article 36(c) of the Labor Standards Act; Article 750 of the Civil Act; Article 27(1) of the Labor Standards Act

A. Supreme Court Decision 86Da204, 86Meu1035 Decided December 13, 198 (Gong1989, 89) (Gong1989, 89). Supreme Court Decision 90Da8763 Decided March 31, 1992 (Gong1992, 1395) 92Da39860 Decided December 8, 1992 (Gong193, 441), Supreme Court Decision 93Da21736 Decided September 24, 1993 (Gong193Ha, 2925), Supreme Court Decision 92Da43586 Decided October 12, 1993 (Gong193Ha, 3061).

Plaintiff

Gyeonggi Chemical Industry Co., Ltd., Counsel for the plaintiff-appellant and two others

Busan High Court Decision 92Na10043 delivered on January 29, 1993

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

On the first ground for appeal

In light of the fact that Article 39 of the Trade Union Act provides a penal provision for the prohibition of unfair labor practices to secure the three rights prescribed by the Constitution, and Articles 42 and 43 of the same Act provide for prompt remedy for unfair labor practices, it shall be regarded as a compulsory law which is an effective provision, and thus, a juristic act in violation of the above provision shall not be effective under the private law, and as long as the juristic act as an unfair labor practice with respect to workers is null and void as it is an unfair labor practice, it is unnecessary to further determine whether there exists a justifiable reason under Article 27 of the Labor Standards Act.

Therefore, the court below is just in finding that the defendant's standby and dismissal disposition against the plaintiff became final and conclusive as an unfair labor practice based on its adopted evidence, and it is not erroneous in the misapprehension of legal principles or incomplete deliberation, such as the theory of lawsuit. There is no ground for appeal.

With respect to the second and third points

In a case where a disposition of dismissal against a worker becomes null and void, an employment relationship is still in force during that period, and an employee’s failure to provide labor during the period of dismissal is attributable to a cause attributable to the employer who makes an unfair dismissal, and thus, an employee is entitled to seek full payment of wages in return for continuing to work in accordance with Article 538(1) of the Civil Act (see, e.g., Supreme Court Decision 81Da626, Dec. 22, 1981; Supreme Court Decision 90Da8763, Mar. 31, 1992; Supreme Court Decision 92Da39860, Dec. 8, 1992).

In addition, the existence of causes for dismissal should be determined at the time of dismissal, so there is a fact that the Labor Relations Commission dismissed the application for remedy for unfair labor practice of workers after the dismissal of the worker, not that of the employer.

In addition, the wages for which payment can be claimed mean the wages stipulated in Article 18 of the Labor Standards Act, so it shall include all the wages to be included in the total amount of wages which are the basis for calculating the average wage under Article 19 of the same Act, and it shall not be limited to ordinary wages.

Therefore, the court below's decision that the plaintiff's failure to provide labor such as the previous one during the period of the above standby order and dismissal was attributable to the defendant, and that the plaintiff recognized the monthly average holiday work hours, night work hours, weekly extended work hours, night extended work hours, and night extended work hours during the three months immediately preceding the above standby order, and accordingly, ordered the payment of overtime work allowances, holiday work allowances, weekly extended work allowances, and night extended work allowances included in the scope of wages as consideration under Article 538 (1) of the Civil Code, is just and there is no error of law by misunderstanding legal principles or incomplete deliberation, such as the theory of lawsuit. The argument is without merit.

On the fourth ground

In general, where an employer’s unfavorable disposition of dismissal, etc. against a worker is judged null and void, it shall not be immediately deemed that such dismissal, etc. constitutes tort. However, an employee who continues to provide labor under an employment contract is of dignity and character as human beings, and it is not merely meaningful to simply implement an employment contract to acquire wages, but also to realize this character through labor. As such, in cases where an employer’s dismissal, etc. is null and void due to an employer’s wrongful dismissal, etc. in violation of Article 39 of the Trade Union Act prohibiting disadvantageous treatment of workers, which is mandatory provision, the employer’s disadvantage is merely a ground for internal concern in imposing such unfavorable disposition, and in substance, the employer’s intention to exclude the worker from the workplace on the ground that the worker was engaged in legitimate labor union activity, and thus, the employer’s act of dismissal, etc. is merely an unlawful act, and thus, it cannot be deemed that such abuse of the employer’s right to disciplinary action is not an unlawful act, and thus, it cannot be deemed that the employer’s emotional injury is 196.

According to the evidence duly admitted by the court below, the above standby and dismissal issued by the defendant against the plaintiff is a disadvantageous measure taken by the defendant using the means of disciplinary action, which is practically suspected of the plaintiff's legitimate labor union activity, to exclude the plaintiff from the defendant's workplace. This is clear that our sound social norms and social norms are not acceptable, and as long as the above unfavorable measure is recognized as an unfair labor activity, the defendant's causes are presumed to be attributable to the defendant. Thus, the court below acknowledged the fact that the plaintiff suffered considerable mental pain on the premise that the above standby order and dismissal disposition against the plaintiff constitute a tort, and ordered the payment of consolation money in consideration of the various circumstances in its ruling, and there is no error of law such as misapprehension of legal principles, incomplete deliberation, lack of reasoning, and omission of judgment. The argument is without merit.

Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Song Man-man (Presiding Justice)