Korea Tourism-Free Co., Ltd. (Law Firm Hyeong, Attorney Cho Jae-in, Counsel for the defendant-appellant)

The Chairman of the National Labor Relations Commission

Defendant 1 and 3 others (Law Firm LLC, Attorney Go Jae-hwan, Counsel for defendant-appellant)

October 30, 2013

Seoul Administrative Court Decision 2009Guhap45808 decided May 10, 2013

1. Of the judgment of the court of first instance, the part concerning the Defendant 2, the Defendant 3, and the Defendant 4’s Intervenor 4 are revoked, and the Plaintiff’s claim on this part is dismissed

2. The defendant 1's appeal is dismissed.

3. The costs of appeal due to the appeal by the Intervenor 1 are borne by the Intervenor 1. The costs of appeal between the Intervenor 2 and the Intervenor 3, and the Plaintiff and the Defendant as to the total costs of appeal between the Plaintiff and the Defendant are borne by the Plaintiff including the costs of appeal due to the intervention.

1. Purport of claim

The decision made by the National Labor Relations Commission on September 23, 2009 was revoked on September 23, 2009 between the plaintiff and the defendant joining the defendant as to the application for reexamination of unfair dismissal.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation of the first instance judgment

Pursuant to Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act, the reasoning of the judgment of the court of first instance shall be cited on the grounds of this judgment, but shall be modified or deleted as described in

2. Alteration of the reasoning of the judgment of the first instance.

A. On the 11th and 4th of the reasoning of the judgment of the court of first instance, and on the following 2th of the numbers:

In the first instance judgment, the 11th parallel 4th parallel 2th parallel 2th parallel 3th parallel 2th parallel 3th parallel 2th parallel 3th parallel 2th parallel 3th group, and the 2th parallel 3th parallel 3th parallel 3th parallel 2th group is replaced by each other.

B. Change of 2 to 14 pages below, a letter 12 of the judgment of the first instance

【Violation of the collective agreement on the time limit to hold the Disciplinary Committee

(1) The starting point of the time when the disciplinary committee was held

Article 26 of the collective agreement of this case provides that "When intending to take disciplinary action against a partner, the disciplinary committee shall be held, and the personal information of the person subject to the disciplinary action, the grounds for disciplinary action, and the date, time, and place of the disciplinary committee shall be specified, and shall be notified in writing to the disciplinary committee members and the person concerned not later than five days before the disciplinary committee is held." Paragraph 2 of Article 26 provides that "the disciplinary committee shall hold a meeting within 10 days from the date of the occurrence of the grounds for disciplinary action, shall give the person an opportunity to vindicate his/her opinion, and shall accept him/her if he/she applies for a witness," and Paragraph 6 of Article 26 provides that "any matters

In addition, the purport of the above provision is to prevent workers from being in unstable status by failing to determine whether or not the plaintiff could unilaterally punish workers, due to the occurrence of the grounds for disciplinary action against workers, and to prevent workers from exercising the disciplinary power, and to exercise the disciplinary power again against the principle of good faith when the plaintiff is expected not to exercise the disciplinary power. Therefore, it seems that the plaintiff's exercise of the disciplinary power is restricted on the ground of the lapse of the period.

In full view of the contents and purport of the above provisions, if a collective agreement provides for the time limit to hold a disciplinary committee and provides for the purport that a resolution of the committee held in violation of such provision shall be null and void, barring any unavoidable circumstance where it is difficult to comply with the above provision as a considerable period of time is required to investigate and determine the person to be disciplined and the grounds for disciplinary action, the resolution of the disciplinary committee held in violation of the above provision shall be null and void. The starting point of the time when the grounds for disciplinary action occurred in principle, but if there are grounds for not disciplinary action, the period shall commence from the time when such grounds cease (see Supreme Court Decision 2010Du20362, Feb. 15,

(2) Whether compliance with the time limit for holding a disciplinary committee against the Intervenor 2, the Intervenor 3, and the Intervenor 4

In full view of the following circumstances, it is reasonable to view that the time limit for holding a disciplinary committee as to the instant worker’s Intervenor 2, the Defendant’s Intervenor 3, and the Defendant’s Intervenor 4 (hereinafter “third person, including the Defendant’s Intervenor 2”) was starting from November 7, 2008, when the Plaintiff filed a complaint with three persons, including the Defendant’s Intervenor 2, to the police due to the suspicion of occupational embezzlement. From this point of view, the disciplinary committee, which was held more than 10 days after the date, decided to punish three persons, including the Defendant’s Intervenor 2, is null and void. Accordingly, this part of the Plaintiff’s assertion is without merit.

① On September 18, 2008, the Plaintiff discovered that the passenger tickets for recovering airport buses submitted by Nonparty 1 were included in the boarding passes issued on the date prior to the date of operation, and the Plaintiff’s self-inspection was conducted from September 18, 2008 to October 31, 2008, and the Plaintiff became aware of the grounds for the disciplinary action against three persons, including the Defendant Defendant 2, by inspecting the converging of the boarding passes and the operating log submitted by the former and incumbent driver from September 2001 to September 2008.

② In a case where a false fact is reported for the purpose of having other persons punished, the crime of false accusation is established, and in a case where the facts of accusation are not acknowledged in itself, the accusation is established even if the details of the accusation were attributable to the fault or negligence of the complainants. Nevertheless, the Plaintiff, including three drivers including the Defendant 2 and the Defendant 2, stated specific embezzlement methods, such as “if 14 drivers, including the Defendant 2, have taken away the boarding passes, etc. of the passengers who do not board among the group towing passengers,” at the time when the complaint was filed against the charge of occupational embezzlement, “if the Plaintiff was placed at the airport ticket box, without purchasing the boarding passes, received the boarding passes in cash, and taken cash instead of the boarding passes.” In addition, the Plaintiff prepared and appended a list of crimes specifying the number of times, amount, date, etc. for each driving engineer, and submitted a photograph of the recovering tickets submitted to the Plaintiff by each driving engineer, and a confirmation certificate of the fact of embezzlement, which acknowledged the facts of embezzlement, to the extent that the grounds for the Defendant’s disciplinary action against the Intervenor at the late 2.

③ The Plaintiff asserts that the disciplinary action was suspended until an investigative agency’s first determination was made in order to determine whether to punish the Defendant 2 and 3 persons including the Intervenor 2. However, if the commencement of the time limit for holding a disciplinary committee is permitted solely for the foregoing reason, the starting point of calculating the time limit for holding a disciplinary committee is unlimited, due to the prosecution’s prosecution, the prosecution’s conviction, the time limit for holding a disciplinary committee’s conviction, or the time when a judgment of conviction was rendered, or when a judgment of conviction became final and conclusive, and the purport of the above provision is likely to be dismissed.

(3) Whether the defendant joining the defendant 1 complies with the time limit for holding a disciplinary committee

Comprehensively taking account of the overall purport of the arguments in Gap evidence 14-1 through 4, the plaintiff filed a complaint with the defendant joining the defendant 1 (hereinafter "the defendant joining the defendant 1") on November 7, 2008 on the charge of occupational embezzlement. On November 11, 2008, before the ten-day disciplinary committee was held, the defendant joining the defendant 1 and the defendant 1 completed the labor relationship on the ground that the term of the labor contract expires. The National Labor Relations Commission decided on April 16, 2009 that the termination of the labor relationship was unfair and ordered the plaintiff 1 to reinstate the defendant 1's original position. Accordingly, on May 3, 2009, the defendant 1 appeared and notified the defendant 1 of the denial of disciplinary action against the defendant 1 on May 17, 2009 due to occupational embezzlement as well as occupational embezzlement as the grounds for the disciplinary action in this case.

In light of the above facts in light of the legal principles as seen earlier, although the plaintiff had sufficiently recognized the grounds for disciplinary action against the defendant 1 at the time of filing a complaint against the defendant 1, it was no longer possible to proceed with the disciplinary action against the defendant 1 on the ground that the labor relation between the defendant 1 and the defendant 1 had already terminated due to the expiration of the term of the labor contract before the ten-day disciplinary committee was held. Since the National Labor Relations Commission ordering the plaintiff 1 to be reinstated to the defendant 1, it is possible to proceed with the disciplinary action again only when the plaintiff's original reinstatement was made. Thus, it is reasonable to view that the disciplinary committee against the defendant 1 was held before the expiration of the ten-day disciplinary committee from his original reinstatement date, and therefore, the plaintiff 1 violated the collective agreement on disciplinary action against the defendant 1 on the ground that the procedure against the defendant 1 had already been held at the time of holding the disciplinary committee.

C. Alteration of the first instance judgment from 10 to 3 11:

【The following circumstances revealed by the above facts. ① The plaintiff is a company which mainly causes revenues from transportation of airport bus, and it is reasonable to view that the plaintiff is responsible for the defendant 2, who is not the defendant 3, to the extent that the plaintiff could not continue to maintain an employment relationship with the defendant 1 and the defendant 2, in light of the following circumstances: (a) it is reasonable to view that the defendant 2, who is the defendant 3, was responsible for the defendant 1, to the extent that the defendant 3, in light of the fact that the defendant 2, who is the defendant 3, was not aware of the above circumstances and at least 10 times of cash charges; and (b) the defendant 1, who is the defendant 2, cannot be seen as being responsible for the defendant 2, including the defendant 3, who is the defendant 2, in light of the period of embezzlement and the fact that the defendant 3, who is the defendant 2, was not in violation of the collective agreement with the defendant 3, and that the defendant 2, who is the defendant 2, was in violation of the above.

D. Change in the last sentence from 6th to 14th day below the letter of first instance judgment

5) The decision

The Plaintiff’s disciplinary dismissal against the Defendant 1 is justifiable, but the disciplinary dismissal against three persons, including the Defendant 2, against disciplinary proceedings, is null and void. As such, the part on three persons, including the Defendant 2, among the instant decision on retrial, is legitimate, but the part on the Defendant 1, as to the Defendant 1, should be revoked in an unlawful manner.

3. Conclusion

The part concerning Defendant 1’s Intervenor 1 among the Plaintiff’s claim is justified, and the remainder of the claim is dismissed as it is without merit. Since the part concerning Defendant 1’s Intervenor 1 among the judgment of the first instance is just in conclusion, the appeal by the Defendant 1 is dismissed. The part concerning Defendant 2, etc.’s Intervenor 2, etc. among the judgment of the first instance is inconsistent with this conclusion, and is not justifiable. Accordingly, the part concerning Defendant 3, such as the Defendant 2, etc.’s Intervenor 2, etc. among the judgment of the first instance is accepted, and the part concerning Defendant 2, etc.

Judges Ansan-jin (Presiding Judge)