Plaintiff (Law Firm Alternative, Attorneys Shin Jae-tae et al., Counsel for the plaintiff-appellant)

Hyundai Heavy Industries Co., Ltd. (Law Firm A&S, Attorney Lee Hy-soo, Counsel for the plaintiff-appellant)

June 9, 2016

1. We affirm that the four-based disciplinary action taken against the Plaintiff on June 3, 2015 against the Plaintiff is null and void.

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

The same shall apply to the order.

1. Basic facts

A. The relationship between the parties

On April 8, 1986, the Plaintiff became a member of Defendant Hyundai Heavy Industries Co., Ltd. (hereinafter “Defendant Co., Ltd.”) and served in the shipbuilding materials support division. The Defendant Co., Ltd. is a corporation that engages in shipbuilding, repair and sales business.

B. The Plaintiff’s broadcast and the attachment of printed materials

원고는 2015. 3. 11.부터 2015. 4. 29.까지 피고 회사 문화관 또는 1도크 게이트 앞 등에서 “여성 조합원을 버린다면 회사는 바로 여러분들한테 정리해고의 칼날을 들이댐”이라는 선전방송을 한 것을 비롯하여 [별지 1] 선전방송 내용 기재와 같이 총 12회에 걸쳐 선전방송을 하고, 2015. 4. 7.부터 2015. 4. 28.까지 피고 회사 생산기술 1관 현관 출입문 등에 “노동자를 짐승 취급 소외 1은 퇴진해! 뭐하노 빨리!!” 등의 문구가 기재된 유인물을 부착한 것을 비롯하여 [별지 2] 유인물 부착 내용 기재와 같이 총 13회에 걸쳐 유인물을 부착하였다.

C. Disciplinary action against the plaintiff

1) On May 19, 2015, the Defendant Company following the resolution of the Personnel Committee (Disciplinary Action) on May 19, 2015, on the ground that “the Plaintiff spreads false facts through broadcasting during the outing hours, disturbs the work order in the workplace by defamation and remarks against the company and its management, and damages facilities by attaching printed materials to the production technology center, etc. without permission, and thereby disturbs the work order in the workplace by impairing the management and honor,” Defendant Company issued a request for reexamination on May 28, 2015 under Articles 30 and 32 of the Collective Agreement, Articles 16-1, 19, 21, 69, 70, and 74 of the Rules of Employment, and Articles 16-1, 16-1, 19, 69, 70, and 74 of the Rules of Employment. The Plaintiff notified the result of the resolution on disciplinary action by the Personnel Committee (Disciplinary Action) committee.

2) On June 3, 2015, Defendant Company: (a) decided on June 3, 2015 by the Review Committee of the Personnel (Disciplinary Action) Committee to take four weeks of suspended disciplinary action against the Plaintiff (hereinafter “instant disciplinary action”).

D. Provisions regarding the collective agreement and employment rules of the defendant company

1. Personnel affairs of a union member shall be consulted with the union in advance, or shall not be converted to the union member without the wish of the union member; 2. The prior consent of the union member shall be given to the change of the organization of the department during his/her term of office; 4. The change in personnel affairs of the union member shall be notified to the union prior to its distribution; 5. The company shall be subject to prior notification to the union of the change in personnel affairs of the union member only at the time of promotion; 3. The company shall be subject to prior notification to the union of the date of such change in personnel affairs of the union member; 3. The company shall be subject to prior notification to the union of the date of such change in personnel affairs of the union member; 4. The company shall be subject to prior notification to the union of the disciplinary committee within 1.5 days after the date of such change in personnel affairs of the union member; 30. The date of such request for disciplinary action shall be determined under mutual agreement.

1. If an employee of the company falls under any of the following subparagraphs, he/she shall be removed from his/her office: 11. An employee of the company under Article 19 (Basic Principles) shall faithfully observe the rules, policies, procedures, etc. of the company and shall endeavor to improve efficiency by complying with such instructions and shall also serve to maintain order in the company within 7 months after he/she has been present at the meeting of the company (the total amount of his/her office shall not be considered as maintaining dignity and shall not be paid within 1.5 days after he/she has been present at the meeting of the company). The company shall not, without permission, engage in any conduct which would impair the reputation or credit of the company (the total amount of his/her employees shall not be paid within 1.5 days after he/she has been present at the meeting of the company). The employer shall not be subject to disciplinary action against him/her for a certain period exceeding 7 months from the date on which he/she has been present at the meeting of the company:

【Ground for recognition” without any dispute, Gap evidence 1, Gap evidence 18 (including each number, hereinafter the same shall apply), Eul evidence 1 through 3, Eul evidence 18 through 22, Eul's testimony and video, non-party 3's testimony and whole purport of pleading

2. The parties' assertion

A. The plaintiff

From November 2014, Defendant Company was under restructuring such as the introduction of performance-based incentives to employees as director or higher, the suspension of layoffs, the suspension of layoffs iceing for desired retirement of female employees, and the relocation of the ocean pipeline production and operation department. Accordingly, Defendant Company’s enforcement department and representatives, including the Plaintiff, proposed labor-management consultation and demanded suspension from the time of departure and retirement, etc. This falls under the legitimate scope of activities of the labor union. Nevertheless, Defendant Company was under the legitimate scope of activities of the labor union. Nevertheless, Defendant Company was subject to disciplinary action only to the Plaintiff except for those who are in the position in charge of the labor union, which is unfair in terms of equity in disciplinary action, lack of substantive legitimacy, and lack of procedural justification, and thus constitutes unfair disciplinary action under the Labor Standards Act.

B. Defendant

From March 11, 2015 to April 28, 2015, the Plaintiff continuously led the Defendant company and its representative director to broadcast a propaganda broadcast on several occasions during the working hours, and caused damage to the Defendant company’s corporate order and order by publicly insulting or honor. From April 7, 2015 to April 29, 2015, without permission of the Defendant company, an incentive containing false facts, insult, and defamation as to the Defendant company and its representative director was attached to the Defendant company’s establishment without permission. This is in violation of Article 21 of the Rules of Employment, and is not only subject to the grounds for dismissal under Article 70(1) and (10) but also subject to the grounds for dismissal under Article 16-1(1)11.

In addition, the four-based disciplinary action against the plaintiff was taken in full consideration of all the circumstances such as the degree of misconduct, recovery, motive and background of the act of misconduct, and the attitude of the plaintiff, which is within the scope of the disciplinary discretion of the defendant company.

3. Determination

A. Whether the grounds for disciplinary action exist

Comprehensively taking account of the following circumstances acknowledged by the Plaintiff’s testimony of Nonparty 1 through 4 as well as Nonparty 3’s witness’s testimony, the Plaintiff’s posting of printed broadcasts without permission on several occasions constitutes grounds for disciplinary action under Article 70(1) and (10) of the Rules of Employment since it constitutes a violation of the service provided in Article 21 of the Rules of Employment, or an act of attaching in-house or workplace articles contrary to private interest without the company’s approval.

① On March 9, 2015, the Defendant Company Trade Union decided the guidance for action in response to the restructuring of the Defendant Company. The content of the assembly is that “Absent and occupied assembly in line with the situation of each department. Absently, the assembly and resolution was made with the members of the union. Absently, the assembly was made at the site, which includes the opposing of the restructuring, the company’s rules, and the details of Nonparty 1’s retirement, etc., and the Plaintiff carried out the guidance for trade union as a representative.

② The Plaintiff (attached Form 1) made a propaganda broadcast as indicated in the contents of a propaganda broadcast, and (attached Form 2) posted a printed object as indicated in the content of a printed object attachment, there is no fact that the Plaintiff obtained prior permission or approval from the Defendant company, and a propaganda broadcast and a publication of a printed object were conducted for a long period of up to ten times.

③ The inducements broadcasted or posted by the Plaintiff revealing that the Defendant Company unilaterally renders restructuring without consulting with workers and transferred management’ responsibilities to workers. Some of the contents are different or exaggerated, and there are many expressions representing the Defendant Company’s management.

B. Whether there is a defect in the disciplinary procedure

On the other hand, although the plaintiff asserted that the procedural legitimacy of disciplinary action was lacking, there is no evidence to acknowledge it. Rather, according to the evidence Nos. 18 and 1 and 2, the defendant company sent a summons to the plaintiff on two occasions on April 30, 2015 and May 11, 2015, but did not transfer the receipt certificate to the plaintiff due to the plaintiff's refusal of receipt. Thus, this part of the plaintiff's assertion is without merit.

C. Whether the disciplinary discretion is exceeded and abused

1) Relevant legal principles

In a case where a disciplinary measure is taken against a person subject to the disciplinary measure, it is at the discretion of the person having authority to take the disciplinary measure. However, if the person having authority to take the disciplinary measure is deemed to have abused discretion when the person having authority to take the disciplinary measure significantly lacks validity under the generally accepted social norms, the disciplinary measure is unlawful. If the disciplinary measure is deemed to be an unlawful measure beyond the scope of discretion because it considerably lacks validity under the generally accepted social norms, it should be deemed that the contents of the disciplinary measure can be objectively and clearly deemed to be unlawful in light of various factors, such as the content and nature of the cause of the disciplinary measure, the purpose of the disciplinary measure, and the criteria for a disciplinary measure. Even if the exercise of authority to take the disciplinary measure is left at the discretion of the person having authority to take the disciplinary measure, the disciplinary measure is against the public interest principle that should exercise the authority to take the disciplinary measure for public interest, or is generally taking the disciplinary measure more than that of the person having authority to take the disciplinary measure, and thus, it violates the principle of proportionality or the standard of fair application of the same degree without any justifiable reason.

2) Facts of recognition

The following facts are acknowledged in light of the contents of evidence Nos. 2 through 34 and the purport of the entire pleadings in video.

① On November 10, 2014, Defendant Company announced that it would introduce a performance-based performance-based incentive system for employees with a position of director or higher, and the performance-based performance-based incentive system is divided into S, A, B, C, and D5 depending on individual performance, work performance, and organizational contribution, and 400% of the bonus that has been paid in the lump sum is paid at 800% under the name of performance. On the introduction of the performance-based performance-based incentive system, the wage of some workers is increased depending on the grade, and the wage of some workers is reduced, and the Defendant Company only implemented the performance-based performance-based incentive with the consent of the head of office or higher without the consent of the labor union.

② Around January 1, 2015, the Defendant Company announced that he would recruit prospective retirees on the ground of management difficulties, and issued a warning at least once during the last three years of service performance record, or at least 55 years of age among those who did not have passed or have failed to have been promoted for a long time, or at least 4 years of service performance, or 1,500 persons subject to improvement of human resources, such as those whose performance record was low during the last four years, or whose performance evaluation rating was lower than C or D during the last four years in the last half of 2014, and interview those subject to improvement by the head of the department from January 16, 205. In that process, the number of employees of the Defendant Company decreased to 1,00 persons.

③ On January 19, 2015, Nonparty 2, the president of the Defendant Company’s Trade Union, expressed the position that “the Defendant Company will suspend unilateral restructuring and comply with the temporary labor-management council; the Defendant Company will suspend the order of dismissal and improve fundamental management structure; the labor union will provide personal and material support for the unity of office workers; the illegality of the labor restructuring is widely known; and the management will be understood.”

④ On January 31, 2015, the Defendant Company notified the Defendant Company that overtime work subject to the improvement of human resources structure will not be performed from February 1, 2015, or be excluded from duties, depending on business management circumstances. The extension allowances that had been paid for the previous fixed period of implementation are equivalent to KRW 60-7 million per month.

⑤ From February 25, 2015 to March 25, 2015, the Defendant Company provided education to improve the job capacity for a person waiting for the assignment of duties, and notified the Defendant Company that it is inevitable to take unfavorable personnel measures if the person waiting for the assignment of duties violates the duty to attend the education, the education attitude is poor, or the education performance is insufficient.

④ On March 3, 2015, the Defendant Company trade union issued to the representative director of the Defendant Company a certificate of content that “Apouting of the Marine Pipelines Production and Operation Department is under way without prior consultation with the trade union, and it cannot be recognized that Apouting is suspended, and the Defendant Company’s position is notified.”

7) On March 25, 2015, the Defendant Company notified the Defendant Company’s representative director of the maritime pipeline production and operation division of 91 human resources as of April 1, 2015, including the Defendant Company’s trade union, of the relocation of 91 human resources of the maritime pipeline production and operation division. The Defendant Company’s trade union issued to the Defendant Company’s representative director a certificate of the content that “The transition arrangement (inter-department relocation, team and team movement) under way from January 30, 2015, which is in progress in violation of Article 18(2) of the collective agreement, reflects the Defendant’s intent in advance or takes place in bad faith without consultation with the trade union

(8) The defendant company did not permit the labor union to hold a meeting in the court attendance in the middle of 2015.

3) Determination

In full view of the following circumstances revealed in light of the aforementioned facts, the instant disciplinary action was unlawful as it deviates from and abused the authority to discretion on disciplinary action, in light of the content and degree of the Plaintiff’s act and the degree of the Plaintiff’s act, etc., by excessively harshly harsh evidence and evidence No. 16 and witness Nonparty 3’s testimony.

(1) The Plaintiff’s act was conducted as part of the trade union’s activities, in order to appeal that the restructuring of the Defendant Company was unreasonable in unilaterally proceeding without sufficient consultation with the trade union, and was conducted for the purpose of improving working conditions and enhancing the economic status

② The Plaintiff’s publicity broadcasting and inducement points out that the restructuring carried out by the Defendant Company constitutes a layoff, criticizes the fact that the transition arrangement was enforced in violation of a collective agreement, and criticizes the situation where the worker was transferred to the management despite the enemy’s responsibility. In light of the above-mentioned factual relationship, the Plaintiff’s assertion to some extent that there was no ground is no assertion.

③ The Defendant Company asserted that the Plaintiff was in charge of the leading role in publicity broadcasts, and that the Plaintiff was voluntarily prepared for the contents of the remarks and printed materials. However, even if the Plaintiff had a leading role, such as the Plaintiff’s actual propaganda broadcasts, it was merely representing the position of the labor union to which the Plaintiff belongs, and the overall contents were embodied within the framework set forth in the labor union’

④ Although the Plaintiff asserted that he damaged or insulting the management’s reputation, even though some expressions used in a propaganda broadcast or printed material were conclusive, somewhat excessive or inappropriate terms were used, such expressions were merely expressed to reveal the imminent situation of workers in the process of rapid restructuring rather than solely slandering the Defendant Company and the management, or were expressed with a view to revealing the imminent situation of workers in the process of rapid restructuring, and it is difficult to view them as the degree of defamation or insult. Furthermore, the Plaintiff did not have been prosecuted or subject to criminal punishment due to criminal facts such as defamation or insult against the Defendant Company’s management.

⑤ It is difficult to readily conclude that the Plaintiff actually interfered with the Defendant Company’s normal performance of duties or disrupted the order of work in the Defendant Company solely on the ground that the Plaintiff (attached Form 1) provides a propaganda broadcast as indicated in the content of the propaganda broadcast, and posted the printed materials, such as the content of the attachment of printed materials.

④ The type of disciplinary action prescribed by the rules of employment of the Defendant Company is subject to disciplinary action, and the amount of demotion, suspension of duty, suspension of attendance at work, reduction of salary, reprimand, and other warnings are imposed. The Plaintiff’s publicity broadcasting and posting of printed materials was conducted for about two months. The Plaintiff’s disciplinary action against a lower level of disciplinary action, such as warning and reprimand, was immediately issued. This is somewhat heavy in light of the degree of the Plaintiff’s misconduct.

7) The Plaintiff, a representative of the Plaintiff, engaged in propaganda broadcasts or posted printed materials in the course of carrying out labor union guidelines. The Plaintiff, other than the Plaintiff, also rendered a four-based disciplinary measure of suspension from office to the Plaintiff even though there were more workers who participated in propaganda broadcasts or posting printed materials. The Plaintiff did not have any record of disciplinary action prior to the instant

4. Conclusion

If so, the plaintiff's claim shall be accepted with due cause, and it is so decided as per Disposition.

[Attachment]

Judges Han-Gyeong (Presiding Judge)