[1] Whether it is against the good faith principle or the good faith principle to dispute in a civil lawsuit merely because the Labor Relations Commission's order for remedy against unfair dismissal has become final and conclusive (negative)

[2] In a case where the rules of employment, etc. stipulate a disciplinary committee composed of the same number of workers and workers, whether an employer may commission a disciplinary committee member without any process that reflects the opinion of workers (negative with qualification)

[1] Articles 84 and 85 of the Trade Union and Labor Relations Adjustment Act, Article 1 of the Civil Procedure Act / [2] Article 30 of the Labor Standards Act

[2] Supreme Court Decision 2006Da48069 decided Nov. 23, 2006 (Gong1997Sang, 41)

Plaintiff (Law Firm citizen, Attorneys Kang Young-chul et al., Counsel for plaintiff-appellant)

Defendant Co., Ltd. (Attorney Park Jong-woo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2005Na101781 decided June 23, 2006

The judgment below is reversed and the case is remanded to Seoul High Court.

1. As to the grounds of appeal on the grounds of disciplinary action

The court below acknowledged the facts as stated in its reasoning based on the adopted evidence. The plaintiff's act of absence without permission and the act of causing traffic accidents constitutes grounds for dismissal under subparagraphs 1 and 5 of Article 36 of the Rules of Employment of the defendant. Furthermore, the court below determined that the above fact-finding and judgment of the court below are correct, and it cannot be viewed that the above fact-finding and judgment of the court below are justified, and it is not justified due to the violation of the rules of evidence or the legal principles as to disciplinary action or abuse of discretion due to the deviation from or abuse of discretion due to a violation of the rules of evidence, since the driver did not perform the fundamental and basic duty of workers under the labor contract and it is not a non-performance of obligation, but it should be viewed that the labor relation between the defendant and the plaintiff is more difficult to expect the continuation as long as it is a cause attributable to the plaintiff's social norms.

In addition, with respect to the argument that the dismissal in this case constitutes unfair labor practices to obstruct the establishment and activities of a trade union, there is insufficient evidence to acknowledge that the dismissal in this case was dismissed for the purpose of obstructing the establishment and activities of the trade union. Rather, on the ground that the dismissal in this case would result in the exercise of legitimate disciplinary authority for the plaintiff's personal misconduct, the court below rejected all of the records on the ground that the dismissal in this case is in violation of the principle of good faith or the principle of good faith, although the dismissal in this case was issued by the Labor Relations Commission, that the plaintiff's argument that the dismissal in this case constitutes unfair dismissal is in violation of the principle of good faith or the principle of good faith, and that the employer's remedy order for the employer in the Labor Relations Commission is merely obligated to obey it to the employer, and it does not cause or change legal relations between the direct labor and management. Thus, it is difficult for the employer to dispute the dismissal in the civil procedure newly raised solely on the ground that it was final and conclusive. In light of the records, the court below's decision is correct, and it is justified, and it does not err by misapprehending the rules of evidence or legal principles concerning unfair labor or labor.

2. As to the ground of appeal on disciplinary procedure

A. The judgment of the court below

The court below rejected the defendant's assertion that there was a significant defect in the composition of the disciplinary committee by not being notified in advance or being given an opportunity to explain the grounds for dismissal in advance to the plaintiff, and that there was a significant defect in the composition of the disciplinary committee, based on the defendant's rules of employment not only did the defendant give an opportunity to inform and explain the grounds for dismissal in this case in advance, but also did not provide a procedure for prior notification and giving an opportunity to make a statement. In such a case, even if the disciplinary action was taken without taking such procedure, the effect of the disciplinary action does not affect the defendant's rules of employment. The defendant's rules of employment only provide that "the disciplinary committee is composed of two union members and two union members" with regard to the composition of the disciplinary committee, and there is no provision regarding the qualification or appointment procedure of the disciplinary committee members, so the qualification or appointment procedure of the disciplinary committee members cannot be separately discussed. Thus, the defendant's resolution of dismissal in this case based on the fact that two union members were commissioned by the defendant cannot be viewed as a procedural defect in the composition of the representative director.

B. The judgment of this Court

First, considering the evidence adopted by the court below in light of the records, it seems inappropriate to recognize that the plaintiff was notified in advance of the grounds for disciplinary action or given an opportunity to vindicate the grounds for disciplinary action, but the defendant's rules of employment do not stipulate the procedures for giving prior notification and giving an opportunity to make statements. Thus, it is just and acceptable to determine that the dismissal in this case does not affect the validity even if the dismissal in this case did not follow such procedures, and there is no illegality of misunderstanding the legal principles as to prior notification and opportunity to vindicate the grounds for disciplinary action.

However, it is difficult to accept the court below's decision that there is no procedural defect in the defendant's rules of employment as to the composition of the disciplinary committee as to the organization of the disciplinary committee composed of two disciplinary committee members in the union and the private sector.

According to the records, the defendant's rules of employment provide that "the Disciplinary Committee shall be comprised of two workers and directors," and the defendant's representative director is the same as the defendant's non-party 1 and the defendant's non-party 2 limited liability company's representative director is the same as the defendant, and the non-party 4 and the non-party 5, who is the defendant's employee, are commissioned as disciplinary committee members. Thus, the provision of disciplinary proceedings in a collective agreement, rules of employment or disciplinary regulations based on such collective agreement, rules of employment or rules, has important meaning as ensuring fair exercise of disciplinary right and promoting the rational operation of the disciplinary system (see Supreme Court Decision 90Da8077 delivered on July 9, 191, 199, etc.). Further, if the rules of employment, etc. require the same number of union members to be composed of two members, from among workers, to secure procedural fairness by guaranteeing workers' right to participate in the disciplinary committee and to check abuse of the company's rights. Thus, the defendant's rules of employment does not directly stipulate the defendant's opinion.

Therefore, the court below should have deliberated more on whether the non-party 4 and non-party 5 commissioned as a disciplinary committee member of the Trade Union and non-party 2 limited liability company has been representing the labor union or representing the opinions of workers, or whether the defendant representative director has gone through the procedures to reflect the opinion of workers in commissioning a disciplinary committee member of the Trade Union (the records are as follows: the defendant and non-party 2 limited liability company held an inaugural general meeting before the dismissal of the case and elected the representative; and the majority of workers have attended a trade union and participated in wage negotiations with the company) and judged whether there is procedural defect in the composition of the Trade Committee of this case, although it should have judged whether there is procedural defect in the composition of the Trade Committee. However, the judgment below erred by misapprehending the legal principles on the interpretation of the rules of employment and failing to exhaust all necessary deliberations, which affected the conclusion of the judgment.

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)