Plaintiff (Attorney Kim Jong-soo, Counsel for the plaintiff-appellant)

Hyundai Heavy Industries Co., Ltd. (Law Firm LLC, Attorneys Shin Jae-young et al., Counsel for the defendant-appellant)

May 26, 2016

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

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant confirms that his dismissal against the Plaintiff on January 23, 2015 is null and void. The Defendant shall pay KRW 30,000,000 to the Plaintiff and KRW 7,299,839 each month from January 24, 2015 to the time the Plaintiff is reinstated.

1. Basic facts

A. On November 30, 2009, the Plaintiff entered into an employment contract with the Defendant Company and worked at the International Legal Team. The main contents of the employment contract are as follows.

1. The main contents of the attached employment contract contained in the main text: The period of internal legal advice 2. Contract: from November 30, 2009 to November 29, 2010, one year (it may be extended by mutual consent and may be terminated by prior notification for at least two months, provided that the defendant company has an option to pay corresponding benefits in lieu of prior notification).

B. On March 8, 2011, the Plaintiff concluded a new employment contract with the Defendant Company with a indefinite period from November 30, 2010.

C. Around November 2012, the Defendant Company assessed the Plaintiff annually, and Nonparty 1, the managing director of the International Legal Team, from November 201 to November 2012, 201, assessed the Plaintiff’s work period of 72 points, along with the comprehensive opinion that “the legal analysis capacity is relatively insufficient, organizational adaptation, team workshops is insufficient, and the overall development related thereto is insufficient,” with respect to the work period from around November 201 to around November 201, the Defendant Company assessed the work period of 72 points (if the evaluation point is at least 75 points, a labor contract can be extended, but if the contract is at least 74 points, the termination of the

D. Around February 2013, the Defendant Company was expected to terminate the employment contract as of June 30, 2013 by receiving a work evaluation of 72 points. However, Nonparty 7, the managing director of the International Law Team, at the end of the negotiations with the Plaintiff, provided the opportunity for the Plaintiff to improve the work performance rather than the retirement procedure, and the Plaintiff continued to work for the Defendant Company even after June 30, 2013.

E. The Plaintiff was assessed respectively as to the period of service from November 2012 to October 2013, 71, and as to the period of service from November 201, 2013 to September 2014.

F. On January 19, 2015, the Defendant Company issued to the Plaintiff a notice of termination of the contract, stating that “The contract will be terminated as of January 23, 2015 (hereinafter “instant dismissal”) with the Plaintiff as of March 8, 2011 pursuant to Article 2 of the employment contract of March 8, 2011.”

G. On February 3, 2015, the Defendant Company paid KRW 56,024,454, including retirement allowances of KRW 14,59,678 (i.e., monthly salary of KRW 7,299,839 x 2 months) to the Plaintiff.

H. Relevant provisions of the rules of employment of the Defendant Company are as follows:

5. Where an employee is dismissed under Article 17 (Advance Notice of Dismissal) (1) if he/she deems that he/she cannot perform his/her duties due to substantially poor work performance or ability; 6. Where he/she falls under disciplinary dismissal, the company shall not give notice of dismissal 60 days prior to such dismissal: Provided, That this shall not apply in cases where it is impossible to continue his/her business due to natural disasters, accidents, or other unavoidable circumstances, or where the employee intentionally interferes with the business or causes property damage, the average wages of 30 days or more shall be paid as an allowance if he/she has removed the employee from his/her office without obtaining approval of the Minister of Labor; 68 (Types of Disciplinary Actions). Where he/she intends to give five rewards and disciplinary measures;

[Reasons for Recognition] Facts without dispute, Gap evidence 1 through 5, Eul evidence 1 through 5, Eul evidence 8 and 17 (including each number; hereinafter the same shall apply), the purport of the whole pleadings

2. The assertion and judgment

A. The parties' assertion

1) The plaintiff's assertion

Around October 2012, the Plaintiff had been working in good faith with no leave without notice. Around October 2012, the Defendant Company already appointed a foreign law firm as an agent while dealing with the case of arbitration related to the purchasing business division. Nonparty 1 of the managing director immediately appointed the ○○○ Legal Office that had previously worked as a joint agent of the Defendant Company, which led to the failure between the Plaintiff and the opposing Plaintiff, and accordingly, Nonparty 1 intentionally lower the work assessment against the Plaintiff.

Although the dismissal of this case constitutes a disciplinary dismissal without justifiable grounds, it is null and void against Article 27 of the Labor Standards Act, which provides that the defendant company shall notify in writing the grounds for and timing of dismissal, such as dismissal of the plaintiff without presenting any grounds therefor.

Therefore, the Defendant Company is obligated to pay 7,299,839 won monthly wages from January 24, 2015 to the time the Plaintiff is reinstated. Furthermore, the Plaintiff suffered a considerable mental loss due to dismissal, and thus, is obligated to pay 30,000,000 won as consolation money.

2) The defendant company's assertion

As a result of the work evaluation for the Plaintiff, there exists a justifiable ground for dismissal under Article 16-1 subparagraph 6 of the Rules of Employment, such as where the contract termination may be considered continuously from 2012 to 2014, which constitutes “when it is deemed that the Plaintiff is unable to perform his/her duties due to a manifestly poor work performance or ability.” Moreover, the Plaintiff did not violate the procedures prescribed in Article 27 of the Labor Standards Act, such as explaining the grounds for dismissal through an interview in advance before notifying the Plaintiff of his/her dismissal on January 23, 2015. Accordingly, the dismissal in this case is justifiable as “ordinary dismissal.”

B. Character of the instant dismissal

On the other hand, dismissal is usually dismissed for reasons different from the grounds for the disciplinary action for the worker, disciplinary action against the worker according to the grounds for the disciplinary action for the reason that there is the grounds for the disciplinary action for the worker, and the employer is divided into layoffs to dismiss the worker by taking the reduction measures according to the business management needs.

In a specific case, the collective agreement or rules of employment distinguish the head of "personnel" from the head of "Discipline" and the head of "Disciplinary Action" from the head of "Personnel Management". The grounds for dismissal, the grounds for disciplinary action and the kind of disciplinary action (including dismissal from the disciplinary action) and the disciplinary procedure are determined respectively. In this case, the number of employees (Chapter 2) and rewards and disciplinary action (Chapter 5) are distinguished from the rules of employment of the defendant company in the rules of employment. The head of personnel affairs also specify the grounds for dismissal in Article 16-1 and the grounds for disciplinary action in Article 69 in the reward and disciplinary action.

In particular, as seen earlier, Article 16-1 of the Rules of Employment distinguish between the "when the dismissal is deemed to fall under the disciplinary dismissal" under subparagraph 5 and subparagraph 6 of the "when the dismissal is deemed to be impossible to perform his duties due to the significant poor work performance or ability," and in addition, the grounds for the disciplinary action under Article 69 of the Rules of Employment and the grounds for dismissal under subparagraph 6 of Article 16-1 of the Rules of Employment cannot be deemed to overlap, as well as the grounds for the disciplinary action under Article 16-1 of the Rules of Employment cannot be deemed to overlap, and there is a need for more strict interpretation of the grounds for the disciplinary action that may be more unfavorable to the workers. In addition, the defendant company

(c) Whether dismissal is null and void;

1) Relevant legal principles

Article 27 of the Labor Standards Act provides that the employer shall notify the grounds for and timing of dismissal in writing “in writing” to a worker. This means that the employer shall decide whether to dismiss the worker more carefully by notifying the grounds for dismissal in writing. The purpose is to clarify the existence, timing and reason of dismissal so that disputes surrounding the dismissal can be resolved appropriately and easily, and that the worker may respond appropriately to the dismissal (see, e.g., Supreme Court Decision 2015Du41401, Sept. 10, 2015).

2) Determination

The testimony of Non-Party 1 is insufficient to recognize that Non-Party 1 intentionally reduced the work evaluation of the plaintiff as the non-party 1 was absent between the plaintiff and the plaintiff, and there is no other evidence to prove otherwise.

Rather, in full view of the following circumstances, comprehensively taking account of each of the evidence mentioned above, Eul evidence Nos. 6, 7, Eul evidence Nos. 9 through 16, Eul evidence No. 18 through 25, and witness Non-party No. 1’s testimony, the Plaintiff’s work ability was relatively insufficient compared to other foreign attorney-at-law, and even if the Defendant Company offered several opportunities for improvement, it is recognized that the grounds for dismissal corresponding to “where it is impossible to perform its duties because of a significant lack of work performance or ability” as stipulated in Article 16-1 subparag. 6 of the Rules of Employment of the Defendant Company, such as the absence of changes in attitude.

In addition, since the defendant company had gone through a practical interview to inform the plaintiff of the reasons for dismissal, it cannot be deemed that there was an unlawful procedural violation against the plaintiff merely because there was no entry of the reasons for dismissal in the notice of termination of the contract formally.

① From 2012 to 2014, the Plaintiff received the lowest points from among the foreign lawyers of the international law team under its control. Unlike the work evaluation in 2013 and 2014, it is difficult to deem that Nonparty 1 intentionally lowered the work evaluation by Nonparty 1, other than Nonparty 1, the head of the international law team, by calculating the average point when Nonparty 7, the manager of the international law team, was a multiple number of professionals, and there is no evidence to deem that Nonparty 1 exercised his influence over Nonparty 7, the commercial person, to lower the work evaluation.

② Furthermore, Nonparty 8 and Nonparty 9 presented a common evaluation opinion to the effect that the position division chief of the International Legal Team is “at least a lack of ability to work compared to other attorney-at-law, and lack of team workshops,” which is similar to Nonparty 1 and Nonparty 7’s comprehensive opinion on work evaluation.

③ In fact, while examining a considerably large amount of contracts, the Plaintiff carried out the review of the contract in bad faith by pointing out only one kind of contracts, etc., and did not properly report to the immediate superior company.

④ The Plaintiff, upon receiving lower points in the assessment of work in 2012, was anticipated to terminate the labor contract as of June 30, 2013, but was given an opportunity to improve the working ability at the end of the negotiations, and thus, it could be predicted that the labor contract may be terminated if the work evaluation is less than 74 points in the future.

⑤ On December 2014, the Plaintiff was recommended to resign on the condition that Nonparty 4 was paid a monthly salary of six months to Nonparty 4 as the Plaintiff received 74 points or less in the work evaluation in 2013 and 2014.

In the course of the interview on January 13, 2015, the head of Nonparty 5, who belongs to the Defendant Company, rejected the Plaintiff’s resignation, stating that “The deliberation was conducted if not only the members of the department but also the employees of the other department (related persons), the result of which is so serious that it is necessary to take measures in the company.” The Plaintiff recommended the Plaintiff to resign a member, who is not a dismissal, rather than a dismissal. However, the Plaintiff would be able to make compensation for the six-month salary, but even if withdrawn without wanting to do so, it would take an official procedure of dismissal.”

④ On January 19, 2015, the Defendant Company sent to the Plaintiff a written notice of termination of the contract based on the results of the evaluation of the work and the deliberation on the market survey. On January 22, 2015, the Defendant Company explained the Company’s policy and the grounds for termination of the contract.

7) Furthermore, on February 3, 2015, the Defendant Company paid retirement allowances, including two-month wages, to the Plaintiff on February 3, 2015, and paid the dismissal allowances under paragraph (2) of the employment contract and Article 18 of the Rules

D. Sub-committee

The dismissal of this case is a usual dismissal, and there is no justifiable reason, and the dismissal is valid due to the lack of procedural illegality. Therefore, the dismissal of this case has no reason to further consider consolation money and wage claims on different premise.

3. Conclusion

Therefore, all of the plaintiff's claims are dismissed. It is so decided as per Disposition.

Judges Han-Gyeong (Presiding Judge)