2013du 1119; cancellation of the Tribunal on Remedy for Unfair Disciplinary Action and Unfair Labor Practices;

1. A;

A person shall be appointed.

0

40

5. E.

6. National Railroad Workers' Union;

The Chairman of the National Labor Relations Commission

Korea Railroad Corporation

Seoul High Court Decision 2012Du13490 Decided December 5, 2012

September 24, 2014

All appeals are dismissed.

The costs of appeal are assessed against each appellant.

We examine the grounds of appeal.

1. The grounds of appeal by the plaintiff B, C, D, E, and the Korean Railroad Workers' Union

A. As to the grounds of appeal Nos. 1 and 2

In light of the reasoning of the judgment of the court of first instance, the court below held that the Plaintiff Korea Railroad Workers' Union (hereinafter referred to as the "Plaintiff Korea Railroad Workers' Union") engaged in the circular and full-time strike of this case for the main purpose of accomplishing the claim regarding the matters belonging to the management body's inherent rights area such as advancement of public enterprises, dismissal, etc., such as management entity's right of management or reinstatement, and that each of the above strike was illegal at the time of the Defendant Intervenor's Intervenor (hereinafter referred to as the " Intervenor") posted a notice on the company's website to the effect that the above strike was illegal, and issued an urgent order to return to work and urged the government to withdraw illegal strike and return to work, and that the workers involved in the strike were aware of the illegality of the strike's act, and therefore, the pertinent circular and full-time strike of this case's strike constitutes legitimate grounds, and thus, it did not err by exceeding the rules of employment and the rules of evidence or the principle of free evaluation of evidence in light of the aforementioned legal principles and records.

B. Regarding ground of appeal No. 3

In citing the judgment of the court of first instance, the court below determined that the disciplinary action against the above plaintiffs is difficult to be deemed to have exceeded or abused the scope of discretion, on the grounds as stated in its reasoning, such as the progress of the circular and full-time strike in this case, the status of plaintiffs B, C, D, and Plaintiff Railroad Labor Union, roles at the time of strike, and circumstances after strike.

In light of the relevant legal principles and records, the lower court’s determination is just and acceptable. In so doing, it did not err by misapprehending the legal doctrine on the appropriateness of a disciplinary decision, or by failing to exhaust

2. The Intervenor’s ground of appeal

A. Regarding ground of appeal No. 1

The court below affirmed the judgment of the court of first instance on the premise that the removal from position on November 29, 2009 of this case was illegal, based on the premise that ① the intervenor would not have ordered the plaintiff A et al. to wait at a certain place without the removal from position of this case and to perform a certain task; so long as the removal from position of this case was illegal, the above personnel order was also illegal; ② the above plaintiff could have sufficient doubts about the legitimacy of the removal from position of this case in light of the circumstances, reasons, etc. of the removal from position of this case; ③ even if the above plaintiff did not perform a given task without being present at the designated place or waiting, it does not seem as a means of passive claim against the removal from position of this case and its subsequent measures. In light of the above, the court below determined that even if the plaintiff did not perform a given task without being present at the designated place or without being present at the designated place, it cannot be viewed as a ground for disciplinary action.

In light of the records, the judgment of the court below is just and acceptable. In so doing, the court below did not err by misapprehending the legal principles regarding unauthorized tin during the period of removal from position, or by exceeding the bounds of the principle of free evaluation of evidence.

B. As to the ground of appeal No. 2, dismissal disposition should be conducted in cases where there is a reason to be responsible for an employee to the extent that the employee could not continue the employment relationship by social norms. Whether it is impossible to continue the employment relationship with the employee concerned by social norms should be determined by comprehensively examining various circumstances such as the employer’s purpose and nature of business, conditions of the workplace, status and duty of the employee concerned, motive and circumstance of the act of misconduct, influence on the company’s business order such as the risk of disturbing the company’s deceptive scheme, and past attitude of work (see Supreme Court Decision 209 May 5, 200

28. See, e.g., Supreme Court Decision 2007Du979.

The court below affirmed the judgment of the court of first instance, and determined that the intervenor's disciplinary action to dismiss the worker who was not responsible for the full-scale strike of this case to the above plaintiff is excessively harsh in light of the degree of the relevant misconduct, and thus, it was unfair in light of the degree of the relevant misconduct, on the ground that it is difficult for the intervenor to take a disciplinary action to dismiss the worker who was deprived of his status as the worker who was an employee who was responsible for the full-time strike of this case to the above plaintiff.

Examining the record in light of the aforementioned legal principles, the lower court’s determination is just and acceptable. In so doing, it did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on disciplinary discretion.

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against each appellant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young

Justices Min Il-young

Justices Kim Jae-han