2012 Gohap17502 Nullification of dismissal

Ansan-gu (61-years, South Korea)

Masung-si Blue-si

Attorney Lee Byung-chul, Attorney Jeong Byung-il

○○ Broadcasting Corporation

Suwon-si, Suwon-si

Representative Director Kim Jong-chul

Law Firm Doz., Counsel for the plaintiff-appellant

1.2 Hun-Ga, 18

March 29, 2013

April 26, 2013

1. All of the plaintiff's claims are dismissed.

2. The costs of lawsuit are assessed against the Plaintiff.

The Defendant confirmed that his dismissal on July 5, 2012 against the Plaintiff is null and void. The Defendant shall pay to the Plaintiff the amount calculated by the ratio of KRW 8,257,935 per month from August 1, 2012 to the time the Plaintiff is reinstated.

1. Basic facts

A. Status of the Parties

The defendant is a broadcasting business operator established for the purpose of broadcasting business, cultural service business, advertising business, etc., and the plaintiff is a person who was employed by the defendant around July 2001 and worked as a chief treatment reporter belonging to the news report station, and was dismissed on July 5, 2012 on the ground of restructuring of human resources by the defendant from management rationalization measures (hereinafter referred to as "the layoff of this case").

B. Reasons for the instant layoff

1) Changes in the commercial sales market and the defendant's management situation

A) Under Article 73(5) of the former Broadcasting Act (wholly amended by Act No. 11373, Feb. 22, 2012; hereinafter the same), the Korea Broadcasting Corporation, which has exclusive control over the terrestrial broadcasting company’s broadcast advertising sales agency under Article 73(5) of the former Broadcasting Act, has operated the so-called “the so-called “the cross-sale sales system,” which is sold in conjunction with the Defendant’s medium-sized broadcasting companies, by securing diversity, public interest, and public nature of public opinion and suppressing the advertising price at the advertising cost, and by linking the terrestrial broadcasting stations with the Seoul metropolitan area and regional and religious broadcasting programs to contribute to balanced regional development. The Defendant also sold the Defendant’s broadcast advertisements in connection with the Defendant’s broadcast advertisements through the Korea National Defense Broadcasting Corporation.

B) However, on November 27, 2008, the Constitutional Court ruled that Article 73(5) of the former Broadcasting Act, which provides that "the Korea Broadcasting Advertising Corporation and the company that received investments from the Korea Broadcasting Advertising Corporation shall not act as a broadcast advertising sales agent for terrestrial broadcasting business operators, violates the freedom of occupation and the right of equality, thereby infringing on the freedom of occupation performance and the right of equality, and thus, is unconstitutional." On December 31, 2009, the Constitutional Court made a decision not to comply with the Constitution, which provides for the time limit for amendment of the said provision (wholly amended by Act No. 2006Hun-Ma352).

After the decision of inconsistency with the Constitution was made, the enactment of the so-called "The Media Lpirir (Media Red and Broadcast Advertising Agency) Act, which was discussed as a alternative law, has been delayed, and the legislative confession has continued, and SBS media Holdings established SBS holding companies SBS's SBS's investment and establishment on the media broadcast channel, which is a private broadcast advertising agency at around November 201, and attempted to engage in direct trade in broadcast advertising that is not via the Korean Broadcasting Advertising Corporation from January 1, 2012. However, the direct trade was suspended only one month since its independent advertising agency system has not been completed.

C) Meanwhile, as a alternative law pursuant to the Constitutional Court’s ruling of inconsistency with the Constitution, the Act on Broadcast Advertising Sales Agencies, Etc. (hereinafter “Act on Broadcast Advertising Sales Agencies”) was enacted on February 22, 2012. Article 20(1) of the Act on Broadcast Advertising Sales Agencies, Etc. also provides that a terrestrial broadcasting advertising agency that vicariously executes a broadcast advertisement should sell broadcasting advertisements of terrestrial broadcasting business entities and small and medium terrestrial broadcasting business entities in combination with other terrestrial broadcasting business entities, thereby maintaining the linkage sales system by stipulating that the broadcast advertisements of terrestrial broadcasting business entities and medium terrestrial broadcasting business entities should be sold in combination with the broadcast advertisements of other terrestrial broadcasting business entities. However, the Act on Broadcast Advertising Sales, which is a public broadcast advertising business entity, has been introduced in order to allow the Korea Broadcasting Advertising Corporation to enter into an advertising sales contract with terrestrial broadcasting business entities and to carry out a broadcast advertising sales agency business by proxy, and was exempted from the previous broadcast advertising sales system and allowed directly for three years from the date of approval for the broadcast advertising program distribution business.

MBC, like SBS, has been subject to restrictions on non-commercial broadcast advertisements other than commercial broadcast entrusted by the Korea Broadcasting Advertising Corporation (Article 5(2) of the Media Leptir Act), and on March 2012, filed a constitutional complaint with respect to the above legal provision, and when the decision of acceptance on the above constitutional complaint is made, the Korea Broadcasting Advertising Promotion Corporation separated from the Korea Broadcasting Advertising Promotion Corporation to establish an independent private media rap and establish a plan to promote direct trade of commercial broadcast advertisements.

D) As of 2011, the Defendant relied on the 50.7% of the total sales (4.8 billion won), 3% of the scam revenue (3.53 billion won) on 37.3% of the scam revenue, 11.6% of the event revenue (1.1 billion won), 3% of the rent revenue (1.1 billion won), 0.3% of the scam revenue (29 billion won) in connection with the SBS’s scam and the local government’s cam and events. However, as seen earlier, SBS established media, and directly sold the scam, and Defendant’s scambling revenue in 2012 decreased as follows.

[Attachment 1] The current status of the Defendant’s reduction in the broadcast advertisement sales that was the first part of 2012

(unit: million won)

A person shall be appointed.

E) In addition to the above institutional changes, terrestrial broadcasting advertising costs, such as TV, satellite broadcasting, and radio, have been gradually reduced to take possession of 0.38% of the GDPR in 1996, due to the diversification of advertising media, such as the Internet, and changes in preference to the mass media, and the overall volume of advertisements has been reduced due to the recent increase in the number of times in 2010, taking account of 0.20% of the GDPR in 2010, and the recent increase in the number of advertisements due to the rapid increase in the ○○○ erosion in Korea and abroad. In addition, local governments have been predicted to reduce the Defendant’s revenue from the sponsor’s major sources of revenue compromise and the event income due to the continuous decrease in the fiscal deterioration.

2) Sale of the Defendant’s assets, reduction of executive salary, etc.

The defendant, which was held on February 14, 2012 at the meeting of the board of directors held on February 14, 2012, sold the assets equivalent to KRW 5220,300,000,000, such as the company's official directors, container, golf membership, and the company's vehicle, and decided to reduce the defendant's 2012 salary by 30% compared to the previous year, and the defendant's executive officers' various allowances such as business promotion expenses, etc. In addition, the defendant changed the limit of the executive's remuneration from KRW 1 billion a year to KRW 700,000 at the regular meeting held on March 27, 2012.

3) Implementation of the Defendant’s restructuring and layoff of the instant case

A) Despite the above self-help efforts, the Defendant’s cash holding amount as of April 2012, as of the base date, has deteriorated its financial status as much as the monthly production cost of 500 million won, and the Defendant opened the board of directors on April 13, 2012 and decided to rearrange the company’s organization by reorganization, and to rearrange its human resources. The Defendant decided to suspend management rationalization measures, such as restructuring, in consultation with the trade union, if there is no applicant for the payment of consolation benefits equivalent to ordinary wages for three months.

B) On April 17, 2012, the Defendant: (a) held a 'organization reorganization debate and public hearing’ in which 3 representative of the company and 3 representatives of workers participate in the debate; (b) gathered opinions on the reorganization; (c) organized the Defendant's existing organization comprised of about 15 executives from among approximately 40 employees, '3 countries (Management Support Bureau, Formation Bureau, Report Bureau), 6 teams (Management Planning Bureau, Business and Marketing Team, Formation Team, Technology Team, Report Team, Data Review Team)'; and (d) the news report bureau and Broadcasting Data room, which belongs to the Plaintiff, were integrated into news report stations, and the local resident system was abolished.

C) On May 2, 2012, the Defendant: (a) the Korean Press Workers’ Union, to which the majority of the Defendant’s employees belongs;

On the side of the ○○ Broadcasting Branch (hereinafter referred to as the “Trade Group”), it has attempted to hold negotiations on the ground that the Defendant’s proposal not only leads to ex officio suffering but also does not comply with the intent of reorganization, including: 30% reduction of the existing ordinary wage, 50% reduction of the production cost, 30% reduction of the production cost, 30% reduction of the total amount of the daily continuing cost, such as open broadcasting, and 2 years suspension of the employment of new employees.

D) Meanwhile, the Defendant, through consultation with the labor union, proposed terms and conditions such as the payment of consolation money equivalent to three-month ordinary wages, transfer support, and preferential re-employment at the time of recruitment of human resources in the future. On the other hand, the head of the labor union and the head of the labor management bureau applied for voluntary retirement, and retired from the office. The Defendant decided to suspend the public sale of 20% or 30% of the total number of employees who were employed in the labor union after consultation with the labor union to reduce the number of employees by 40% of the total number of employees, including the number of employees who were employed in the labor union and 20% of the total number of employees who were employed in the labor union. Since then, it was inevitable for the employer-management support director, the head of the labor union, the head of the labor union, and the head of the labor union and the head of the labor labor union to provide advice on the instant change in terms of the number of employees who were employed in the labor union.

A person shall be appointed.

A person shall be appointed.

E) The Defendant provided the labor law firm, an advisory company, with the details of the above consultation and personnel information for all 39 employees, and the labor law firm, based on the most serious criteria for the selection of a person subject to layoff (in the case of a person subject to reorganization, consolidation, or abolition, whether profitability is low compared to personnel expenses), idle personnel, efficiency (in the case of a person subject to reorganization, consolidation, or abolition), standbyist, age, and age.

(whether or not a child was born before 1969), the class (or higher than the deputy head), the disciplinary records due to maritime actions, improper employees, etc. were considered as the criteria for the selection of those subject to layoffs, and other factors such as economic ability, dependents, criminal records, etc. were considered as reference.

A labor law firm shall examine 39 regular employees of the defendant in accordance with the above criteria for review, and select 20 employees, including the plaintiff, as shown in the attached Form, as the subject of layoff, and conduct an interview with them as the other party, and then, on May 30, 2012, the following nine employees, including the plaintiff, were selected as those subject to layoff.

[Attachment 2] Persons subject to a decision to be dismissed

A person shall be appointed.

F) On May 30, 2012, the Defendant notified the above persons that they were eligible for mediation by the human resources management rationalization pursuant to the Defendant’s management rationalization measures, and requested to pay consolation money equivalent to the ordinary wages for three months to the maximum extent possible to leave employment, and to seek a new honorary retirement by presenting the conditions such as giving priority to employment when a company’s management situation is changed and a company is open to the public. Among the above persons, the above persons, which led to the delivery of the voluntary retirement officer by the Cho Jong-gu et al. among them, and the remainder of the voluntary retirement officer except this Doe was transferred to the Defendant as a short-term employee.

On June 5, 2012, the Defendant notified a person subject to layoff who did not express his/her intention of voluntary retirement, such as the Plaintiff, the head of the new Dol, Dol, and Kim Jong-ri, and dismissed him/her on July 5, 2012.

(c) relevant regulations;

On the other hand, the provisions pertaining to this case in the Labor Standards Act are as follows.

/ Labor Standards Act

Article 24 (Restrictions on Dismissal for Administrative Reasons)

(1) Where an employer intends to dismiss a worker for managerial reasons, urgent administrative necessity.

in such cases, the transfer, acquisition, or merger of a business to prevent the aggravation of management is urgent.

(b) is deemed necessary for the management of the State.

(2) In the case of paragraph (1), the employer shall make every effort to avoid dismissal and shall be reasonable.

shall determine the criteria for reasonable dismissal and shall accordingly select those persons to be subject thereto.

In case of gender, there shall not be any discrimination on the basis of gender.

(3) The employer shall comply with the method of avoiding dismissal and the criteria for dismissal under the provisions of paragraph (2).

a trade union organized by a majority of workers at the business or workplace;

the labor union (if there is no labor union organized by a majority of workers, the section of workers);

The date of dismissal of a person representing half the number of workers; hereinafter referred to as the "representative of workers");

50 days prior to the date of notification and consultation in good faith.

[Reasons for Recognition] Each entry of Gap evidence No. 1, Eul evidence No. 1 through No. 22, and the purport of the whole pleadings and arguments

2. Determination as to the claim for nullification of dismissal

A. The plaintiff's assertion

From 2009 to 2011, the defendant has achieved blacks with the amount of KRW 300 million to KRW 500 million. The fact that temporary advertisement revenue has decreased during the first half of 2012 does not necessarily mean that there was an urgent administrative need to cut down the layoff, and the defendant cannot be deemed to have made sufficient self-help efforts to avoid the layoff, and the plaintiff selected the plaintiff as a person subject to layoff without any reasonable ground even though the plaintiff faithfully performed his duties by taking charge of the work with the presiding official in the Western area and the Amins News, and the instant layoff is null and void because it does not meet the requirements prescribed in the Labor Standards Act.

B. Determination

1) Requirements for layoffs

Where an employer intends to dismiss a worker for managerial reasons under Article 24(1) through (3) of the Labor Standards Act, there must be an urgent administrative need, and efforts shall be made to avoid dismissal, and persons subject to dismissal shall be selected in accordance with reasonable and fair standards, and the methods and criteria for avoiding dismissal shall be consulted in good faith with the labor union or the representative of workers organized by a majority of workers. Meanwhile, the specific internal uses of each of the above requirements are not conclusive and fixed, but are usually determined depending on the degree of fulfillment of other requirements in specific cases. Thus, whether the relevant dismissal for administrative reasons satisfies all of the above requirements should be determined by comprehensively taking into account individual circumstances that constitute the above requirements (see Supreme Court Decision 2003Da69393, Jan. 26, 2006).

2) Whether there was an urgent managerial necessity for the instant layoff

"An urgent administrative necessity" among the requirements for layoffs is not always limited to the case of avoiding corporate bankruptcy, but includes the case of need for personnel reduction in order to cope with the future crisis, but also includes the case of need for personnel reduction. However, such personnel reduction should be recognized as having a rational nature from an objective perspective (see Supreme Court Decision 2001Da29542 delivered on July 9, 2002).

However, although the Defendant did not face serious crisis at the time of the instant layoff, it was clearly anticipated that the Defendant’s major revenue source advertising market was generally invaded due to the above facts, i.e., cable TV, general broadcast service opening, Internet diffusion, etc., the Defendant’s maximum revenue source radio commercials sales will have been reduced continuously after the expansion of the Internet. On June 2012, 2012, when the Korea Lpirir Media Act was implemented, competition was introduced in each commercial broadcast advertising company, which is subject to the protection of the linked sales system under the so-called former Broadcasting Act, and the Defendant was under the protection of the linked sales system under the so-called former Broadcasting Act, to cope with changes in the market environment. In light of the need for reorganization of the Defendant’s organization and business management, it is objectively anticipated that the need for reorganization of the broadcast advertising company in light of the need for reorganization of the Defendant’s organization and the need for reorganization.

With regard to this, the Plaintiff asserts that the Defendant achieved blacks from 2009 to 2011, from 300 million to 500 million won, and that there was no urgent managerial need to dismiss the instant case, as the earned surplus in 2011 to 4.16 billion won was very sound.

In light of the above facts, although the defendant does not dispute the plaintiff's above assertion, the defendant also spent approximately KRW 500 million in the average program production cost per month. In full view of the statement and the purport of the argument in Eul's evidence No. 24, the defendant spent approximately KRW 500 million in the average program production cost. The defendant should return the lease deposit amount of KRW 2.3 billion to the head of Suwon-won City around December 31, 2013, the defendant should return the lease deposit amount of KRW 2.3 billion in around the end of 2013. In light of the fact that the digital broadcasting was completely conducted in 2013, KRW 1.0 billion in the cost of purchasing equipment. In light of this, the plaintiff's assertion that there was no urgent need to conclude that the above sales amount was reduced as the defendant's monthly average production cost per month, and the defendant's sales revenue was reduced within 200 million in the future.

3) Whether the employer has made every effort to avoid dismissal

However, the employer has to make every effort to avoid dismissal before the implementation of the layoff means that the employer takes all possible measures to minimize the scope of dismissal, such as rationalization of management policies or work methods, prohibition of new employment, temporary retirement, utilization of voluntary retirement and transfer of work (see Supreme Court Decision 99Du202 delivered on April 27, 199). However, the method and degree of such measures vary depending on the degree of the management crisis of the relevant employer, the degree of implementation of the layoff, the contents and scale of the project, the number of employees by position, etc. of the relevant employer, not on conclusive and fixed basis, and if an agreement on the implementation of the layoff has been reached with the labor union or the representative of the labor union on the method of avoiding the dismissal in good faith, such circumstances should also be taken into account in determining the efforts to avoid dismissal (see Supreme Court Decision 2001Da29452 delivered on July 9, 202).

In light of the above legal principles, with respect to whether the Defendant made efforts to avoid the instant layoff, as seen earlier, the Defendant voluntarily reduced the amount of executive salary and business promotion expenses and sold fixed assets and made efforts to improve the management status by selling fixed assets. The Defendant, after consultation several times with the labor union, made efforts to avoid the instant layoff, such as the implementation of the instant layoff, the suspension of new employment before the instant layoff, the recruitment of prospective retirees, etc., and the Defendant made efforts to minimize the amount of the layoff, including the receipt of applications for honorary retirement, and as a result, nine persons initially arranged were selected as final and conclusive, but the final and conclusive subjects of the layoff were reduced to four persons. In light of the above, it is reasonable to deem that the Defendant took all possible measures to minimize the scope of the layoff.

4) Whether a person is selected in accordance with reasonable and fair criteria

What is reasonable and fair criteria for layoffs vary depending on the strength of the management crisis faced by the employer, the managerial reasons for which layoffs should be conducted, the contents of the business sector in which layoffs have been conducted, the composition of workers, and the social and economic situation at the time of layoffs.

In addition, if an employer has reached an agreement on the criteria for dismissal in good faith with the labor union or the labor representative regarding the criteria for dismissal, such circumstances should also be taken into account in determining whether the criteria for dismissal are reasonable and fair (see Supreme Court Decision 2001Da29452, Jul. 9, 2002). In addition, in the case of layoff, the dismissal requires minor images on the part of the employer, not for the personal and behavior of the worker, and thus, the subjective circumstances of each worker, such as age, continuous service period, existence of duty to support, property, health status, etc., should also be considered in selecting the person subject to dismissal.

In light of the following circumstances revealed in the facts acknowledged earlier, the defendant prepared the criteria for the selection of the person subject to layoffs in this case through negotiations with the labor union and five times, and the labor union demanded that the person subject to layoffs be excluded from the criteria for the selection of the person subject to layoffs on the ground that the defendant continued to have been in a labor union and has been in an arbitrary personnel position in the part with personnel management authority. The defendant demanded that the person subject to layoffs be selected as the person subject to layoffs without fail. The defendant prepared the criteria for the selection of the person subject to layoffs upon the request of such labor union. The defendant prepared the criteria for the selection of the person subject to layoffs, the defendant's subjective circumstances such as the age, class, disciplinary power, economic situation, etc. of the worker, and the defendant made the person subject to layoffs to select the person subject to layoffs as the advisory company. In light of the fact that the defendant made the person subject to dismissal to select the person subject to layoffs objectively and fairly, the criteria set by the defendant should be determined.

The plaintiff did not dispute about the rationality and fairness of the criteria for layoff in this case, but agreed that the defendant and the labor union should no longer deal with the false academic background of the members in the past, so the plaintiff's false entry of the academic background at the time of joining the defendant does not take into account the selection of the person subject to layoff. The plaintiff's previous conviction does not have any relation to the plaintiff's act of non-performance of duties, and thus, it is also illegal.

In light of the facts of the above crime, there is no evidence to deem that the defendant and the labor union agreed to attach the false academic background of the members, and rather negative entry items were included in the criteria for the selection of the dismissed person at the strong request of the labor union. On the other hand, considering the whole purport of the arguments in the statement No. 15-4 of the evidence No. B, the plaintiff was found guilty of violation of the election law by receiving money from the head of the Suwon-si Council at the time of Suwon-si, 2004, which was held by the head of the Labor Council for the election of the National Assembly members at the time of the time when the defendant worked as the visiting party, and it is reasonable to deem that the above misconduct of the plaintiff is related to the plaintiff's duties in light of the facts of the above crime, and it is reasonable to consider it while the defendant being dismissed. The plaintiff's above assertion is without merit.

5) Whether there was a sincere consultation with a trade union

An employer under Article 24(3) of the Labor Standards Act shall inform in advance and faithfully consult with the labor union if there is a labor union organized by a majority of workers at the business or workplace, and with respect to the method of avoiding a dismissal, the labor union organized by a majority of workers at the business or workplace, and with respect to the person representing a majority of workers if there is no labor union organized by a majority of workers (the representative of workers). In addition, the procedural requirements for layoff are secured to meet the substantive requirements of dismissal under Article 24(1) and (2) of the Labor Standards Act, and it is desirable to conduct it in mutual understanding through consultation even if it is inevitable (see the above Decision 201Da29452).

Therefore, in order to reduce workers, consultation with the representative of workers who can represent the interests of the person subject to layoffs is necessary. As acknowledged in the above basic facts, the defendant presented a letter of reduction of expenses including the reduction of 30% of ordinary wages to the labor union of this case to which more than the majority of the defendant belongs, but decided to suspend layoffs due to the rejection, and it reached an agreement between the labor union on May 24, 2012 by reflecting the trade union's demand on five occasions and by reflecting the size of the layoffs of this case and the criteria for selection of persons subject to layoffs. In light of these circumstances, it is reasonable to view that the defendant faithfully consulted with the labor union in the instant case.

6) Sub-decisions

Therefore, it is reasonable that the instant layoff satisfies the requirements stipulated in Article 24 of the Labor Standards Act, and therefore, the Plaintiff’s assertion that the instant layoff is null and void is without merit.

3. Determination on the claim for wages

As seen earlier, the instant layoff is justifiable, and contrary to the premise that the instant layoff is null and void, the prior Plaintiff’s claim for wages is without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case is all dismissed, and it is so decided as per Disposition.

The presiding judge shall be appointed by the judge.

Judges Cho Young-chul

Judges Yoon Dok-gi

1) The former Broadcasting Act

Article 73 (Commercials, etc.)

(5) A broadcasting channel operator who enters into a contract with a terrestrial broadcasting business operator to use the broadcasting channel and makes terrestrial broadcasts using such channel.

In addition to commercial broadcasts entrusted by the Korea Broadcasting Advertising Corporation or by a commercial broadcast marketing agency prescribed by the Presidential Decree, any user shall be included in commercial broadcasts.

No commercial shall be broadcast.