(영문) 서울행정법원 2009.3.27.선고 2008구합33280 판결

In 2008, the decision made by a new trial shall be revoked with respect to the case of an application for new trial for unfair change of occupation ○○○○○○○○○○○○○○○○○○○○○○○○○, the suspension of unfair employment,

Reasons

1. Details of the decision made by the retrial;

A. The plaintiff was established on October 1982 and operated grain transport business with 20 full-time workers working at the above domicile (hereinafter "the plaintiff company"), the intervenor 1 entered the plaintiff company on October 1993, and the intervenor 2 entered the plaintiff company on October 2002 and was dismissed from the plaintiff company on October 2005. The Incheon Regional Labor Relations Commission recognized the dismissal of the intervenors as unfair and ordered the plaintiff company to return to the plaintiff company on the part of the intervenors. Among the Seoul Regional Labor Relations Commission dismissed the plaintiff's application for reexamination on the judgment of the Incheon Regional Labor Relations Commission, the Seoul Central Labor Relations Commission dismissed the plaintiff's request for reexamination on the judgment of the Central Labor Relations Commission, and the Seoul Administrative Court dismissed the plaintiff's request for reexamination on July 207, 200, which was filed by the plaintiff on the ground that the plaintiff was dissatisfied with the judgment of the Central Labor Relations Commission's request for reexamination.

B. On December 24, 2007, the Plaintiff Company: (a) returned to the Intervenor 1 on January 9, 2008; (b) however, the Intervenor had the Intervenor be transferred to the management office of a garage that was not a cargo driver; (c) on January 15, 2008, the Intervenor was sent to the Intervenor 2 on January 15, 2008; and (d) on February 4, 2008, the Intervenor did not enter into a collective agreement with the Plaintiff Company for one-month disciplinary action (hereinafter “instant work suspension order”); (c) on the ground that the Intervenor did not participate in the collective bargaining examination or pay wages to the Intervenor, unlike other employees of the Plaintiff Company; and (d) the Intervenor did not comply with the Plaintiff Company’s request with the Incheon Labor Union’s General Labor Union’s 200 (hereinafter “Seoul Labor Union’s General Labor Union’s 200 et al.).

C. Accordingly, on January 30, 2008, the intervenors added the purport of the application to the Incheon Regional Labor Relations Commission on February 4, 2008 (the purport of the application was added to February 14, 2008), the transfer and the attendance suspension in the instant case to the Incheon Regional Labor Relations Commission is unfair, and the Plaintiff shall pay an amount equivalent to the wages not paid. The Plaintiff shall pay the amount of the work suspension and the attendance suspension in the instant case, and the failure to subscribe to the workplace health insurance or pay wages to the intervenors is an unfair labor practice in disadvantageous measures. The failure to comply with the Labor Relations Commission’s request for collective bargaining is an unfair labor practice in refusal of collective bargaining, and the Incheon Regional Labor Relations Commission filed a petition for remedy with the same content as the order for remedy by citing all the intervenors’ request for remedy.

D. The plaintiff is dissatisfied with the above order of remedy and on May 8, 2008, to the National Labor Relations Commission on May 10, 2008.

Although the National Labor Relations Commission dismissed the Plaintiff’s application for reexamination on July 1, 2008 (hereinafter “the instant decision on reexamination”) on the ground that the application for reexamination was filed by 2008 ○○○○○ or ○○○○○○○○○○○○○○○○○○, (i) the purport of the application was to delete the part of unfair labor practices regarding the refusal and dismissal of collective bargaining.

2. Whether the decision on the retrial of this case is lawful

A. The plaintiff company's assertion

1) At the time of the Intervenor’s reinstatement, the Intervenor did not issue the Intervenor as a cargo driver because the Intervenor did not have sufficient vehicles and did not need a shift driver’s shift service. However, the reason why the Intervenor 1 did not have been assigned as a cargo driver is that the Intervenor destroyed the engine due to the failure to manage the vehicle in the case of the Intervenor 1, and that the Intervenor 2 sought another driver due to the failure to comply with the order to reinstate the vehicle due to the failure to comply with the order to reinstate the vehicle in the case of the Intervenor 2. As such, there is a cause attributable to the Intervenor. In addition, the Plaintiff Company agreed with the Intervenor 2 that the Intervenor 1 would immediately be reinstated as a driver in the light of the need for the number of future drivers, and the Intervenor 1 had been on duty without any objection, and thus, the transfer of this case is justifiable.

2) The suspension of attendance at work in this case was just because the Intervenor refused to prepare a work in the beginning of reinstatement, and the average working hours per day did not amount to the minimum amount that the Intervenor should have to work to the extent that the average working hours per day does not reach one hour, and it was inevitable to take disciplinary action due to the Intervenor’s failure to comply with the Plaintiff Company’s recommendation or warning. This is without any connection with the Intervenor’s trade union activities, and thus, it cannot be deemed unfair labor practices.

3) The delay in subscription to workplace medical insurance for the intervenors is due to the fact that the intervenors were reinstated after the dismissal, making a consideration of when the first day of acquisition is calculated. The delay in the payment of the first month is due to the fact that the intervenors were immediately released from the account for the payment of benefits, and that the monthly salary for the participants was different from the paid-in workers, the fact that the drivers were engaged in overtime work and holiday work, and thus, it cannot be said that it is an unfair labor practice.

4) Accordingly, the decision on the review of this case, which concluded otherwise, should be revoked as it is unlawful.

(b) Facts of recognition;

1) The intervenors joined the instant trade union on September 20, 2006, and there is no other member except the intervenors among the workers of the Plaintiff company.

2) As seen earlier, the Plaintiff Company did not have an employee to be exclusively in charge of the management of the garage before the Intervenor is reinstated according to the Supreme Court decision, and the Plaintiff Company had been engaged in the management of the garage as incidental business to the managing member of the Plaintiff Company, such as rainwater rearrangement work, removal work, and removal work, and the construction of the garage in which soil was inserted when the floor was sold.

3) During the service of the Intervenor in the office of managing the garage, the Plaintiff Company made the Intervenor sell approximately one meter deep to the garage, and made the scrap tree planted on the drained drainage, and made the Plaintiff Company perform the work of planting the scrap trees on the erode, 5m in depth and 1m in depth, erobbbbbing construction wastes into erobbbbbbbbb and eros, thereby having the Intervenor put them into the garage.

4) As of December 2007, the average wage of the Plaintiff Company’s driver-employed workers was determined as KRW 2,000 per month,00,000 per month, without additional allowances, for the Intervenor’s wage as of December 2, 2007 by aggregating the basic wage (1,00,000,000 won) and the allowances according to the frequency of driving (1,00 won).

5) On January 11, 2008, the instant trade union held to the Plaintiff Company on January 17, 2008 collective bargaining for concluding a wage agreement and a collective agreement in 2008, but the negotiation place was selected by the Plaintiff Company and requested to conduct collective bargaining on January 15, 2008 by notifying the Plaintiff Company thereof, but the Plaintiff Company held a disciplinary committee on January 15, 2008, and requested the Plaintiff Company to conduct collective bargaining. However, on January 15, 2008, the Plaintiff Company held a disciplinary committee against the Intervenor 2 to “Refusal to prepare a work site and non-compliance with instructions”, “10 Eclblners on one and two depots each day, and arranged approximately 10 Eclblners on a garage, “09: 57 minutes of attendance, 2 to three minutes of work,” refusal to give instructions, and suspension of attendance at work for one month due to neglect of attendance.

6) On January 17, 2008, the Plaintiff Company notified the instant trade union of the date of negotiations that it would conduct collective bargaining after changing the date of negotiations to January 23, 2008. When the instant trade union requested that it conduct collective bargaining on February 4, 2008, the Plaintiff Company would make a demand on January 28, 2008 to the original High Court to conduct collective bargaining on February 4, 2008, the Plaintiff Company was scheduled by the Disciplinary Committee against the Intervenor 1 as of February 4, 2008.

7) On January 24, 2008, the Plaintiff Company sent a warning to the Intervenor 1 on the grounds that working hours are bad or only working hours are bad, and on February 4, 2008, the Plaintiff Company held a disciplinary committee as to the Intervenor 1 and took a disciplinary action for one month of the suspension of attendance at work for the same reason.

8) The Plaintiff Company rejected the instant trade union’s request for collective bargaining on the ground that it concluded a trade union’s wage agreement and collective agreement with a superior organization consisting of the remaining workers, excluding the intervenors.

9) The Intervenor requested the Plaintiff Company to subscribe to an employment insurance policy and pay wages on several occasions, such as stating that “I must go to the hospital due to the insertion of the day and the erobbbrosis, so I will immediately issue a health insurance certificate,” at the work site,” but the Plaintiff Company did not comply with it.

C. Determination

1) Whether the transfer of this case constitutes an unfair change of occupation

A) As a matter of principle, the transfer or the transfer of a worker belongs to the authority of the employer who is the personnel management authority, the employer has a considerable discretion within the scope necessary for his duties, and it cannot be deemed null and void unless there are special circumstances such as violation of the Labor Standards Act or abuse of rights. Whether the transfer or the transfer or the transfer or the transfer constitutes an abuse of rights should be determined by considering comprehensively whether the worker conducted the procedure required under the good faith principle in the course of the transfer or the transfer or the transfer or the need for the work such as the transfer or the consultation with the worker, etc. (Supreme Court Decision 9Du2963 delivered on April 11, 200).

B) In light of the above legal principles, the issue of whether there is a legitimate reason under Article 23(1) of the former Labor Standards Act is against the purport of the Supreme Court's decision recognizing that the former position of this case is unfair dismissal of the intervenors and that the Plaintiff Company is obligated to restore the intervenors to their original position. As seen earlier, the Plaintiff Company had not employed the Intervenor in exclusive charge of vehicle management before the Intervenor's reinstatement and had the Plaintiff Company’s management officer manage the vehicle. The vehicle management work conducted during this period is limited to the case’s rain removal work, the floor of the Plaintiff Company’s management work, and it cannot be viewed as necessary for the Intervenor to transfer all of the intervenors to the former position through the next notification management work, and the Plaintiff Company did not appear to be necessary for the Plaintiff Company to have been transferred to the Plaintiff Company for the reason that the Plaintiff Company did not return to the Plaintiff Company's previous vehicle management work, including the removal of rainwater, and the Plaintiff Company did not appear to have been necessary for the Plaintiff Company's previous 1 and the Plaintiff Company's previous 2 Plaintiff Company's employees.

In addition, as seen earlier, monthly wages of KRW 1,00,00, and KRW 00 as of December 2, 2007, which the Plaintiff Company made to pay to the Intervenor after the transfer of this case, do not exceed half of the monthly wage of KRW 2,008, and KRW 940 of the drivers of the Plaintiff Company as of December 2, 2007, and there is no opportunity for the Intervenor to receive allowances according to the frequency of operation. The Plaintiff Company made the Intervenor sell the garage a volume of approximately one meter in depth on the garage to the Intervenor, or made the Intervenor cut the construction wastes into a brue and a brue.

In light of the fact that the previous occupation of this case was caused by an unexpected change of disadvantage that could not be ordinarily predicted to the intervenors in light of the fact that the worker appeared to have been suffering from the excessive physical labor in comparison with the driver's work, and that the current position of this case was caused by an unexpected change of disadvantage to the intervenors. However, there is no evidence to support that the plaintiff company had gone through the procedure required under the good faith principle, such as consultation with the intervenors during the previous occupation process of this case. Thus, the transfer of this case constitutes an abuse of right as an unfair personnel order and thus, the transfer of this case is null and void.

2) Whether the time suspension of attendance in this case is an unreasonable disciplinary action

If a transfer order is null and void, the act of a worker who fails to comply with the order can not be deemed a cause for disciplinary action (see Supreme Court Decision 90Da12366, Sept. 24, 191). As seen earlier, the transfer of this case is null and void, so the intervenor's refusal or neglect of the duty to reinstate the intervenor and the management office of the garage shall not be deemed a cause for disciplinary action. Even if the ground for disciplinary action is acknowledged, if the selected disciplinary action is deemed to be an abuse of discretionary power that has been entrusted to the person having authority over disciplinary action because the selected disciplinary action has considerably lost validity under the social norms, it shall be deemed unlawful (see Supreme Court Decision 97-258, 2535, Sept. 3, 199, etc.). Thus, it is only one day after the intervenor failed to prepare his work site, and if it appears that the plaintiff company's work would be improper or unnecessary during the work ordered by the intervenor, and it is obviously unlawful in light of social norms and social norms.

3) Whether the attendance suspension in the instant case, health insurance failure, and wage arrears constitute unfair labor practices

Unlike the grounds for the disciplinary action against the Intervenor on the surface, whether or not the Intervenor was subject to disciplinary action on the ground that the Intervenor was actually a legitimate labor union member’s activities, etc., shall be determined comprehensively by examining all the circumstances such as the ground for discipline, the timing of disciplinary action, the procedure taken by the employer until the disciplinary action is taken, the imbalance between the union members and non-members in the same case, the employer’s speech and behavior or attitude toward the union members, and the relationship with the labor union, etc. (see, e.g., Supreme Court Decision 94Nu301, Dec. 23, 1994). In light of the above circumstances, the Intervenor’s request for the suspension of attendance to the Plaintiff 2, the Plaintiff Company did not have any justifiable ground for disciplinary action on the ground that the Intervenor was subject to the disciplinary action on the ground that the Intervenor was not subject to disciplinary action on the ground that the Intervenor was not subject to the disciplinary action on the ground that the Plaintiff’s request for suspension of attendance was unlawful, and that the labor union was subject to disciplinary action on the Plaintiff 10.

4) Accordingly, the decision on the retrial of this case, which concluded as above, is lawful.

3. Conclusion

Therefore, the claim of this case by the plaintiff company is dismissed as it is without merit, and it is so decided as per Disposition.