[1] Where an employer orders a worker who has committed an accident, misconduct, etc. to submit a letter of apology or a letter of warning that means a crime, or a statement of reflection, including “the fact that he/she commits a crime against his/her / her misunderstanding,” without merely reporting the circumstances of the case, whether it can be deemed an occupational legitimate order (negative)

[2] In a case where it is sufficient to recognize the validity of a disciplinary measure even with only other grounds recognized as a part of multiple disciplinary grounds, whether a disciplinary measure can be maintained as it is (affirmative), and the case where a disciplinary measure taken as an exercise of discretionary power is deemed an unlawful disposition beyond the scope of discretionary power, as the disciplinary measure taken as an exercise of discretionary power considerably lacks validity under the social norms

[1] Article 19 of the Constitution / [2] Article 23 of the Labor Standards Act, Article 27 of the Administrative Litigation Act

[1] Supreme Court Decision 2009Du6605 Decided January 14, 2010 (Gong2010Sang, 337) / [2] Supreme Court Decision 2002Du6620 Decided September 24, 2002 (Gong2002Ha, 2587) Supreme Court Decision 2006Da3399 Decided December 28, 2007 (Gong2005Du9019 Decided November 25, 2005) Supreme Court Decision 2008Du15404 Decided November 27, 2008

Plaintiff 1 and two others (Law Firm LLC, Attorneys Gangwon-ho et al., Counsel for the plaintiff-appellant)

The Chairman of the National Labor Relations Commission

Ada Korea Co., Ltd. (Law Firm Chungcheong, Attorneys Park Gi-hoon et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2013Nu46213 decided January 24, 2014

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

The grounds of appeal are examined.

1. As to the second ground for appeal

If an employer orders a worker who committed an accident or misconduct to submit a written statement of the time when he/she committed the accident or misconduct, and furthermore, if the written statement does not merely mean a mere report on the situation of the case, but further means a criminal offense or reflective nature including “the content that reflects and commits a self-defense” with respect to an accident that occurred in a labor relationship, it is invalid as it is a compulsory enforcement on the ethical judgment within the Constitution guaranteed by the Constitution, as it infringes on the freedom of conscience, and thus, it does not constitute a legitimate order in the course of business (see Supreme Court Decision 2009Du6605, Jan. 14, 2010).

According to the reasoning of the lower judgment and the first instance judgment as cited by the lower court, the lower court determined that, in light of the following: (a) the statement submitted by the Plaintiffs to the Intervenor joining the Defendant (hereinafter referred to as the “ Intervenor Company”), the Plaintiffs did not seem to have any matters requiring additional confirmation as well as the fact that the circumstance of the instant case was already indicated in the statement; (b) the e-mail sent by the Intervenor Company after confirming the content of the said statement; and (c) the intervenor Company’s response submitted to the Plaintiffs in relation to disciplinary action as of September 9, 2011 by the Intervenor Company against the Plaintiffs, it is reasonable to deem that the time when the Intervenor Company requested to submit to the Plaintiffs is included in the contents of the crime of the death and the reflect; and therefore, such an order for submission of the

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, the judgment below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

2. Regarding ground of appeal No. 1

In a case where it is sufficient to recognize the validity of a disciplinary action only with some other disciplinary reasons which are not recognized as part of the various disciplinary reasons, it is not illegal even if the disciplinary action is maintained (see Supreme Court Decision 2006Da33999, Dec. 28, 2007, etc.). Whether a disciplinary measure should be taken specifically when a disciplinary measure is taken against a person subject to disciplinary action is taken is at the discretion of the authorized person. However, if the disciplinary measure taken as an exercise of discretionary power is recognized as an abuse of discretionary power, it can be deemed unlawful only when the disciplinary measure taken as an exercise of discretionary power is recognized as an abuse of discretionary power by the authorized person, and if the disciplinary measure is deemed to be an unlawful disposition that goes beyond the scope of discretionary power due to a manifest loss of validity under the social norms, it shall be deemed that the contents and nature of the disciplinary action, the purpose of the disciplinary measure to achieve it, and the criteria for a disciplinary measure, etc. (see, e.g., Supreme Court Decision 2005Du925, Jan. 29, 205).

The court below accepted the judgment of the court of first instance, and found that the act of causing the risk of accidents by entering the intervenor company which keeps a large amount of dangerous materials at night constitutes "an act contrary to official duties" among the grounds for disciplinary action prescribed in Article 69 subparagraph 2 of the Rules of Employment of the Intervenor company, but in light of the degree of offense, disciplinary action of the reduction rate of 1 month (hereinafter referred to as "instant disciplinary action") in the light of the degree of discretion of the person having authority over disciplinary action is too heavy and unfair.

However, we cannot accept such judgment of the court below for the following reasons.

The record reveals the following facts.

① The Intervenor Company is a company producing plastic additives by inserting dangerous substances as fuel in a chemical reaction, and keeps large quantities of inflammable and explosive dangerous substances in an outdoor tank and factory. Accordingly, there are concerns that large-scale accidents may occur due to leakage of dangerous substances, etc., and where such accidents occur, it is likely that large-scale accidents may occur due to leakage of dangerous substances, and that large-scale accidents may occur to nearby residents as well as the Intervenor Company. After the instant disciplinary action, the Intervenor Company was subject to the suspension of operation for one month.

② For the foregoing risk, employees engaged in the manufacture of the Intervenor Company, as seen above, were required to observe safety rules, and accordingly, the Intervenor Company prepared and submitted a written safety oath to the Intervenor Company. Of them, there were the following contents: “When entering into a labor contract, the Intervenor Company would follow the instructions of the responsible manager and SDP (work standards) and observe all safety rules; and “I would not perform drinking in the workplace without permission.”

③ On August 9, 2011 and August 11, 2011, the Plaintiffs started drinking from each of the immediately preceding day, and started drinking to the new wall, and went through the Intervenor Company at around 05:30 or around 04:30, and 04:30, and the outdoor tank in which the sloping room is located and the dangerous substance was stored was far away from approximately 20 meters.

④ The Plaintiffs, as seen above, were under drinking a considerable amount of alcohol, and were in the A.M. work without completely getting out of the state of their drinking. Unlike ordinary work, when operating the equipment of the intervenor company’s factory, which was conducted once a year, according to the process of subdivision work, the Plaintiffs directly dismantled various equipment to check whether there is a material, and then replaced or washing work was conducted. As such, the Plaintiffs’ occurrence of an unexpected accident was higher than ordinary work.

In light of the above facts and other records, it can be inferred that the plaintiffs did not have a normal physical and mental state due to drinking time and the participant company's entry time, and the risk of safety accident to take place in the participant company without permission, the defendant company's act using facilities to take place outside of work, and physical and mental work after drinking and without physical and mental soundness, the participant company's authority to manage the participant company's facilities is inevitably emphasized due to the risks of safety accident, and the service rules related to safety should be strictly observed. In light of drinking time and the participant company's time of entry and exit, it can be inferred that the plaintiffs did not have a normal physical and mental state due to such drinking time at the time of the plaintiff company's work. In light of the above drinking situation, the plaintiffs' work risks in the participant company's work without permission, and the defendant company's act of using facilities to take place without permission in a new wall, which caused the risk of safety accident without permission, is obviously unlawful beyond the scope of discretion of this case's disciplinary action against the participant company.

Nevertheless, while recognizing the grounds for disciplinary action as above, the court below determined that the disciplinary action of the intervenor company in this case is too inappropriate on the grounds of its stated reasoning. In so doing, the court below erred by misapprehending the legal principles on disciplinary action, thereby adversely affecting the conclusion of the judgment. The ground for appeal pointing this out is with merit.

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 Yong-deok (Presiding Justice)