(영문) 대전지방법원 2010.7.14. 선고 2010구합1554 판결

A. On December 29, 1980, the Plaintiff was established for the purpose of passenger transport service for buses in agricultural and fishing villages and engaged in more than 60 workers. A is a bus engineer employed by the Plaintiff company on March 1, 200 and providing labor.

B. On August 13, 2008, A applied for remedy against unfair dismissal on the ground that the Plaintiff was subject to unfair dismissal from the Plaintiff. On September 29, 2008, the Defendant issued a remedy order ordering the Plaintiff to restore the Plaintiff to the original position within 30 days from the date of receipt of the written remedy order, and to pay the amount equivalent to the wages that the Plaintiff could have received if the Plaintiff had worked during the dismissal period (hereinafter referred to as “instant remedy order”). On December 16, 2009, the Defendant issued the remedy order to the Plaintiff on the ground that the Plaintiff failed to comply with all of the instant remedy order despite having been notified that the enforcement fine would be imposed upon the Plaintiff’s failure to comply with the above remedy order, Article 33 of the Labor Standards Act and Article 13 [Attachment 3] of the Enforcement Decree of the same Act [Standards for imposing enforcement fine] and Article 13 [Attachment 3] of the Enforcement Decree of the same Act.

[Ground of recognition] Facts without dispute, Gap evidence 1, Eul evidence 1 to Eul evidence 4, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff asserts that the remedy order of this case is unlawful for the following reasons, and thus, the disposition of this case based on the non-performance is also unlawful.

(1) The Plaintiff Company was dismissed through legitimate disciplinary proceedings to punish A’s above misconduct since A worked as a bus driver of the Plaintiff Company on January 4, 2008 and on January 23, 2008. Thus, the dismissal of the Plaintiff Company was justifiable in light of the Plaintiff Company’s disciplinary regulations and the details of the Disciplinary Committee’s regulations, the degree of the act of misconduct, and the degree of the Plaintiff’s ordinary job attitude.

(2) In addition, on July 16, 2008, after the dismissal, A filed a petition for the payment of retirement pay with the Plaintiff Company, with the Cheongcheon District Labor Office on July 25, 2008, and recognized the validity of dismissal by receiving retirement pay without any objection from the Plaintiff Company, but on August 13, 2008, A again denied the validity of the dismissal of the Plaintiff Company against the Defendant and applied for remedy against unfair dismissal. This constitutes an act contrary to the good faith principle.

B. Relevant statutes

It is as shown in the attached Form.

(1) Circumstances leading to the dismissal of the Plaintiff A

(A) On January 4, 2008, A came to start with the wind of 06:30, which was anticipated to start with the wind of 06:18, A, which was scheduled to start with the bus operation of the Plaintiff Company, from 07:18, and on January 23, 2008, the operation of the Hansan Line 6 courses from the 07:10,000, 00, 07. (B) On June 3, 2008, the Plaintiff Company decided to dismiss the Plaintiff Company from office to 08,000, 2000, 2000, 2000, 3 courses were removed from office to 1,000,000,000.

(C) Meanwhile, the disciplinary provision regarding the dismissal of the Plaintiff Company provides that the dismissal of the Plaintiff Company shall be carried out at the time of the first and second voluntary decision-making process at the time of voluntary decision-making on the licensed route.

(2) Circumstances and details of the Defendant’s instant remedy order

(A) On August 13, 2008, the Defendant asserted that “The Plaintiff Company’s disciplinary regulations provide that “The Plaintiff Company’s disciplinary action regulations shall be dismissed for one month of temporary retirement, and two months of temporary retirement.” On January 23, 2008, an employee’s one-time demonstration room is starting, but the operation of January 4, 2008 is not intentional but non-contestable delay, and CCTV that can confirm the departure of voluntary interference is impossible. The CCTV that can confirm the departure of voluntary interference is not reading. The operation record book does not have any objective basis to confirm the fact that A made two times a decision, as alleged by the employer, such as where it is impossible to accurately check the arrival and departure time of each bus stop and bus stop, and that the Plaintiff did not pay the Plaintiff the amount equivalent to the amount of the Plaintiff’s discretionary power during the period of dismissal for reasons that the Plaintiff did not take any measure such as warning or disciplinary action against the worker.”

(B) Meanwhile, the Defendant informed the Plaintiff that enforcement fines may be imposed if he/she fails to comply with the above order of remedy while serving the order of remedy on November 28, 2008, and requested the National Labor Relations Commission to submit the performance report. On October 29, 2008, the Plaintiff rejected the Plaintiff’s application for reexamination on the ground that “the dismissal disposition against A is unfair, and it cannot be readily concluded that a worker recognized the validity of retirement allowances solely on the ground that A received retirement allowances after having filed a petition with the labor office for liquidation of retirement allowances,” which was dismissed on December 17, 2008, when the National Labor Relations Commission rendered a decision with the same purport as the Defendant’s decision of remedy.

(C) The Plaintiff re-appealed and brought a lawsuit seeking revocation of the above review decision by the Central Labor Relations Commission as Seoul Administrative Court 2009Guhap1037, but the judgment was rendered on September 11, 2009 that the Plaintiff’s claim was dismissed, and the lawsuit is pending in Seoul High Court 2009Du31054 as of the Plaintiff’s appeal.

(3) The progress of Gap's claim for retirement allowance against the plaintiff and the plaintiff's order for remedy

(A) On July 16, 2008, A filed a petition against the Plaintiff Company for the payment of retirement allowances with the Boan Branch of the Daejeon Regional Labor Office. On July 25, 2008, the Plaintiff Company paid retirement allowances of KRW 18,56,558 to A on July 25, 2008, in accordance with the order of correction by the said Ministry of Labor.

(B) On November 28, 2008, the enforcement period of the instant remedy order, and even before December 7, 2009, the Plaintiff did not perform the restoration to the original position and the amount equivalent to the wages of A. The Defendant issued a notice again on December 7, 2009 to the Plaintiff on December 7, 2009, and on this, on December 16, 2009, the Plaintiff considered that the dismissal of the Plaintiff against A was legitimate for the second regular route determination and that it was concluded after the payment of retirement allowances. The lawsuit against the instant remedy order is pending.

Inasmuch as a non-performance penalty is not imposed until a sentence is imposed, only a written opinion stating that the imposition of a non-performance penalty would be reserved is not implemented.

[Reasons for Recognition] Facts without dispute, each of the evidence mentioned above, Eul evidence Nos. 5 through 10 (including each number), the purport of the whole pleadings

(d) Markets:

(1) Articles 31 through 33 and 112 of the Labor Standards Act, Article 11 of the Enforcement Decree of the Labor Standards Act, and Article 84 of the Rules of the Labor Members’ Council shall be allowed to file a petition for review only within a relatively short period of ten days with the employer subject to the order for remedy, and the validity of the order shall not be suspended even by filing an application for review or an administrative litigation. The implementation period of the order for remedy shall be limited to not more than 30 days, and if the order for remedy is not complied with, it shall be subject to criminal punishment in addition to the imposition of non-performance penalty. The purport of the above provisions in the Acts and subordinate statutes is to allow the Labor Relations Commission to issue a remedy order for the reinstatement of the original position and the amount equivalent to wages, and to provide the work for a certain period of time by phased and procedural support, so long as the order for remedy is unfair, it can be argued that there is no need to deny the binding force of the order until the order is revoked by the competent authorities such as the administrative agency or the court.

(2) Therefore, as to whether the order of remedy in this case constitutes an invalidation of a matter of law, the above facts and the following circumstances acknowledged by the evidence as follows: ① the purport of the order of remedy in this case is unreasonable dismissal against A as there is no objective ground to acknowledge the Plaintiff’s assertion that A arbitrarily attached the operating route over two occasions. The Defendant’s above determination is due to facts acknowledged by the evidence submitted at the time and a free conviction based on the parties’ assertion. Thus, even if the Defendant’s mistake in the determination of the facts and value of evidence of domestic affairs, it appears that even if it was found that the judgment of the Defendant’s factual relations and value of evidence constitutes a grave and obvious defect that may be revoked by the retrial decision or administrative litigation, and ② the Plaintiff filed an administrative litigation again upon the request of reexamination, and the request of reexamination was rejected in the above administrative litigation, the Plaintiff’s assertion is without merit. ③ At the time of the order of remedy in this case, the Plaintiff was tried to use CCTV records on January 4, 2008, but it was impossible to take a warning against the Defendant 201.

There is no evidence to acknowledge it as invalid on the ground that there is a large and obvious defect, and there is no other evidence to prove it. Therefore, the remedy order of this case cannot be deemed unlawful.

(3) Meanwhile, on July 16, 2008, A filed a petition against the Plaintiff Company for the payment of retirement allowance of KRW 18,56,58 from the Plaintiff Company on July 25, 2008 and received retirement allowance of KRW 18,56,558 from the Plaintiff Company on July 25, 2008, as seen earlier, however, in light of the fact that A denied the validity of dismissal and applied for unfair dismissal on August 13, 2008, for which two months have not yet passed since the date of dismissal, it is difficult to view that A merely based on the above fact of recognition, it was difficult to deem that A immediately formed an external appearance to recognize the result of dismissal and not dispute its validity, and thus, A’s application for remedy cannot be deemed an act contrary to the good faith.

(4) The theory of lawsuit

Therefore, the Plaintiff’s assertion that the instant disposition should be revoked on the premise of illegality of the instant remedy order is without merit, and in light of the grounds and circumstances of the instant remedy order and the instant disposition, the circumstances before and after it, the scale of business place, and the period of non-performance of the Plaintiff’s remedy order, etc., it cannot be deemed that the Defendant abused or abused discretion in rendering the instant disposition. Thus, the instant disposition is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is without merit, and it is so decided as per Disposition by the court below.