Asian Air Co., Ltd. (Attorney Kim Jae-chul et al., Counsel for the plaintiff-appellant)

The Chairman of the National Labor Relations Commission

The Intervenor joining the Defendant (Law Firm Shin, Attorney Kim Young-young, Counsel for the defendant-appellant)

December 14, 2016

Seoul Administrative Court Decision 2015Guhap67014 decided May 26, 2016

1. Revocation of the first instance judgment.

2. The plaintiff's claim is dismissed.

3. The total cost of the lawsuit shall be borne by the Plaintiff, including the cost of supplementary participation.

1. Purport of claim

On May 14, 2015, the Central Labor Relations Commission revoked the review decision made between the Plaintiff and the Defendant’s Intervenor on the case of the petition for review of unfair flight suspension application between the Plaintiff and the Defendant’s Intervenor.

2. Purport of appeal

The same shall apply to the order.

1. Details of the decision on retrial;

The reasoning for this part of this Court is as follows, with the exception of using some parts as follows, the corresponding part of the judgment of the court of first instance (from No. 8 to No. 7) is identical to the corresponding part of the judgment of the court of first instance (from No. 2, No. 8 to No. 5 of the judgment of the court of first instance). Thus, this part is cited in accordance with Article 8(2

In the case of the first instance judgment, the first instance judgment No. 2, the 16th "on the plaintiff," shall be applied to the intervenor.

In the case of the first instance judgment, the 3th to 7th to 3th to 4th to 4th to 5th to 4th to 4th to 5th to 4th to 5th to

On September 15, 2014, the Intervenor submitted a situation manual to Nonparty 1, 2014, and Nonparty 1 sent an e-mail to the same day to the effect that he/she could not grow salt, and that he/she would allow any foreigner to do so. The restriction of naturally is an excessive restriction on the physical freedom, and ③ is growing salt with religious reasons and faith, and is not growing for any other e-mail purposes. As a captain, he/she promises to be satisfing the infant’s quantity so that he/she may work very soon in the company with pride, so he/she is not able to do so. The Intervenor submitted a situation manual to the effect that he/she would not have any more specific and clear explanation on the reason thereof, and Nonparty 1 sent an e-mail to the same day to the effect that he/she would not have any more specific and clear understanding on the reason thereof, and thus, he/she would not be able to have any more understanding of personal discrimination from around September 16, 2014.

In addition, “On the other hand, the Plaintiff did not pay flight allowances of KRW 3,240,827 out of the Intervenor’s salary of September 2014.”

2. Whether the instant disposition is lawful

A. The nature of the instant flight stop

The reasoning for this part of this Court is as follows, with the exception of using some parts as follows, the corresponding part of the judgment of the court of first instance (from 4 to 8 pages 5 to 3) is the same as that of the judgment of the court of first instance. Thus, this part is accepted in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

In the 6th sentence of the first instance judgment, the evidence Nos. 10, 20, 39 through 43 of the "A" No. 10, 20, 39 through 43 of the 6th sentence of the first instance judgment.

In Chapter 7, Item 3, "(However, it seems that the actual disciplinary action has not been taken)" was "(the plaintiff was subject to a reduction of one month against the intervenor on July 14, 2015, and the intervenor filed an application for remedy for the cancellation of the above disciplinary action, and the Seoul Regional Labor Relations Commission dismissed the intervenor's application for remedy on December 24, 2015 (Seoul District Court Decision 2015No. 2778), but the Central Labor Relations Commission dismissed the intervenor's application for remedy on April 6, 2016 (Seoul Decision 2015No. 2778), but the National Labor Relations Commission did not recognize the grounds for disciplinary action and did not have any defect in the disciplinary proceedings, but the disciplinary action against the intervenor was unfair (Central Decision 2016 No. 92)."

B. Whether the flight suspension in this case is legitimate

1) Whether the Plaintiff’s appearance provision constitutes an unfavorable amendment to the rules of employment is null and void

A) The parties’ assertion

The reason of the suspension of flight in this case is that a male employee violates Article 5 (1) 2 of the plaintiff's work uniforms and appearance regulations (hereinafter "the above provision") that prevent the intervenor from raising infections, or did not implement the plaintiff's corrective orders. The defendant and the intervenor enacted in 2006, despite the unfavorable amendment of the rules of employment, they did not follow the collective consent procedure of the worker. Thus, the above provision of this case is null and void. Accordingly, the suspension of flight in this case issued on the ground of the violation of the provision of this case is unlawful because the plaintiff was enacted for more than 2006 years, but the plaintiff was employed by the plaintiff, and the amendment of the rules of employment in this case cannot be seen as null and void since the amendment of the rules of employment in this case cannot be seen as a collective violation of the rules of employment since the amendment of the rules of this case was made in relation to the procedure and the amendment of the rules of employment in this case.

B) Determination

The Plaintiff’s “Flight Rules” (No. 31 Evidence) 5-5-2, enacted in 1988, provides that “The captain shall have a sound appearance with a sound mind and a sound sense of responsibility and actively perform his duties.” Article 3(2) of the “Guidelines for Flight Crew Uniform Uniforms” enacted in 1994, similar to the instant provision, provides that “in the case of a foreign flight crew who is generalized to be infected with a must be allowed to the extent that it does not cause a sense of aversion to others.” However, the Plaintiff enacted the above Uniform Guidelines for Flight Crew’s Uniforms and the “work Uniforms” enacted on January 2006 by combining the “work Uniforms” that regulate employees other than flight crew members.

The Rules of Employment stipulate the rules of service regulations and uniform rules of working conditions for maintaining order in the workplace (see Supreme Court Decision 91Da30828, Feb. 28, 1992). The provisions of this case constitute the rules of employment that contain the rules of service that uniformly apply to workers. However, even if the provisions of this case which prohibit the raising of infection to participants are established in 2006, such provisions are not newly established in 2006, and it cannot be deemed that the enactment of the provisions of this case's appearance rules constitutes an amendment of the rules of employment unless the provisions of this case's appearance rules were already established in the "Guidelines for Flight Crew" enacted in 1994, which was 194, prior to the entry of the Intervenor, and it cannot be deemed that the amendment of the rules of employment was null and void without the consent of the Intervenor 2, even if the amendment of the rules of employment was made in force after the amendment of the rules of employment in 194 (see Supreme Court Decision 2009Da1962999, supra.).

2) Whether the instant provision is null and void in violation of the Constitution and laws

A) The parties’ assertion

The defendant and the intervenor asserted that the provision of this case is unconstitutional in violation of the principle of excessive prohibition by comprehensively prohibiting only Korean male employees from raising salt, and excessively restricting their general rights to freedom of action. The provision of this case is null and void, and the suspension of flight of this case on the premise of the violation of the provision of this case is unlawful. Accordingly, the plaintiff may place certain restrictions on the uniforms and appearance of its members according to the freedom of business management or freedom of business operation. The plaintiff argues that the provision of this case cannot be deemed null and void because it violates the public order and good morals or violates the general freedom of action and equal rights of its members including the intervenor.

B) Determination

(1) Relevant legal principles

(1) The rules of employment are prepared by an employer to uniformly establish the standards for worker service regulations and working conditions in a workplace under a business management right. This is the purpose of the Labor Standards Act to protect and improve the basic life of workers who enjoy by strengthening the position of substantially equal workers on the basis of the reality of subordinate labor relations (see Supreme Court Decision 7Da355, Jul. 26, 197). Article 96 of the Labor Standards Act provides that the rules of employment shall not go against the Acts and subordinate statutes, and the Minister of Employment and Labor may order amendments to the rules of employment that are contrary to the Acts and subordinate statutes. In full view of the above-mentioned status of subordinate labor relations, the legal nature of the rules of employment, and the provisions of related Acts and subordinate statutes, it is reasonable to deem that the rules of employment are invalid.

Meanwhile, the employer’s order of work, which belongs to the employer’s right to order work, shall be given discretion to the employer to the extent that it is deemed necessary for the business, and the collective agreement or rules of employment, etc. may be made without any basis. However, the suspension of flight in this case is premised on the assumption that the intervenor violated the obligation to comply with the instant provision, and that the intervenor refused to comply with the Plaintiff’s order of correction. Thus, if the instant provision has no effect as it has been in violation of the Constitution and laws, and it is not recognized that the Intervenor’

② Article 11(1) of the Constitution of the Republic of Korea provides that “All citizens shall be equal before the law, and any person shall not be discriminated against in political, economic, social, or cultural life on the basis of gender, religion, or social status.” According to the purport of the Constitution, Article 6 of the Labor Standards Act provides that “An employer shall neither discriminate against workers on the ground of gender, nor discriminate against workers on the ground of nationality, religion, or social status.”

③ The principle of equality, based on Article 11(1) of the Constitution, prevents a person from arbitrarily treating the same in essence. It means that not only the application of statutes, but also the application of statutes, but also unreasonable discrimination should not be treated when a legislation is made (see, e.g., Supreme Court en banc Decision 2005Du14417, Oct. 29, 2007; Supreme Court en banc Decision 2007Du8287, Nov. 20, 2008).

④ The fundamental rights under the Constitution are primarily a defensive right to protect an individual’s free sphere from an infringement of public authority, on the other hand, embodying an objective value order, which is a basic determination of the Constitution. As such, a private legal relationship between private persons should also be governed by the provisions of the fundamental rights under the Constitution. In a case where two fundamental rights conflict over a single legal relationship, it shall be resolved by balancing profits by comprehensively taking into account the circumstances in a specific case into account, and an interpretation seeking an actual harmony between both fundamental rights. Accordingly, the final illegality of the act should be determined by taking into account the limitation on the exercise of both fundamental rights, etc. (see Supreme Court Decision 2008Da38288, Apr. 22, 2010).

(2) Specific determination

Article 11 of the Constitution and Article 6 of the Labor Standards Act are violated the principle of equality by discriminating against a national and a foreign employee of the Republic of Korea without any justifiable reason in light of the following circumstances acknowledged by the health care unit, the evidence mentioned above, and evidence mentioned above, and evidence mentioned above, and evidence mentioned above, and evidence mentioned above, Gap 4, 13, 14, 17, 24, 24, 30 through 34, 39, 40, 42, 43, Eul 2 through 5, and Eul 2 through 15, and the testimony and the whole purport of arguments mentioned below. Further, the provision of this case is in violation of the principle of equality under Article 11 of the Constitution and Article 6 of the Labor Standards Act by preventing a national from growing salt in part on the basis of the state or form of salt, and thus, it is difficult to view that a national violates the principle of excessive prohibition by excessively prohibiting a national employee from taking advantage of his general freedom of action. Accordingly, the provision of this case is null and void.

① The instant provision completely prohibits only male employees from raising salt, thereby discriminating against Korean nationals and foreign employees on the basis of “national”.

② The Plaintiff asserts that the provision of this case does not constitute a violation of the principle of equality under the Constitution by allowing a foreigner to be granted an exception to the provision applicable to a Korean national in order to respect the foreigner’s culture and customs by allowing a person to whom a mustache is generalized. Therefore, the Plaintiff asserts that the provision of this case does not constitute a violation of the principle of equality under the Constitution by discriminatinging against and treating the Korean nationals unfavorably. However, the Plaintiff determined otherwise whether to be a Korean national or a foreign national without relation to customs or religion, namely, whether to allow a person to grow a mustache on the basis of “national.” Even according to the Plaintiff’s assertion, the instant provision of this case is intended for having the employee be equipped with a decent appearance, thereby having the employee to voluntarily work, and for the customer to form a sense of sense and trust with respect to the Plaintiff, there is no reasonable ground to treat the foreigner’s crew differently

(3) For example, in the case of dong-in crew members who have no special reason to get infected, and whose appearance alone is difficult to ascertain whether general customers are foreign crew members, they are allowed to grow beards without any difference with domestic crew members in terms of the content of their duties or awareness of customers, while domestic crew members are completely prohibited from raising salts, and there is no reasonable ground for such discrimination. If, as alleged by the Plaintiff, there is a need to regulate differently whether to grant infections by religion or custom, etc., this should be applied equally to domestic foreigners on the basis of such reason, not “national”.

④ While the Plaintiff asserts that there is a problem in the safety when the Plaintiff raises infection, the Plaintiff did not submit any materials to support the safety of the Korean crew who raised salt compared to the foreign crew members who raised salt.

⑤ Ultimately, regulating whether the instant provision allows the growing of salt based on “national” is inconsistent with the principle of equality as provided by Article 11 of the Constitution and Article 6(a) of the Labor Standards Act by means of unfair discrimination without reasonable grounds.

6) The instant provision prohibits a male employee of the Plaintiff from growing a beard in its entirety. The Plaintiff asserts that the decent appearance and uniform of the Plaintiff’s employee is directly connected to the trust and trust of customers with respect to the Plaintiff. Considering that the Plaintiff’s work needs, etc. impose certain restrictions on the uniforms and appearance of its members on the Plaintiff’s employees, it may be justified based on the freedom of business, and in particular, on the Plaintiff’s employees’ appearance and appearance, which are the main business contents, may have greater impact on the satisfaction or trust of the company. However, it is necessary for the Plaintiff to impose restrictions on the uniforms and appearance of its members in itself on the Plaintiff’s employees. However, such restrictions are ultimately limited to an individual’s freedom to choose two uniforms and uniforms in order to realize one’s own identity, thereby restricting the Plaintiff’s freedom of action and freedom of action, which is ultimately guaranteed by Article 10 of the Constitution. Accordingly, the Plaintiff’s general freedom of action and freedom of action should be determined through the restriction on the Plaintiff’s members’ freedom of action.

7) The Plaintiff asserts the legitimacy of the instant provision on the premise that the raising of beard is not a decent appearance. However, there is no ground to view that today’s raising of beard itself is an decent appearance for customers, and that it is difficult to understand and trust the image of the Plaintiff. The Plaintiff also knows that the raising of beard is difficult for Korean flight crew members to customers, and makes it difficult to see that it can interfere with the formation of trust with the Plaintiff. In the case of Korean airline aviation, the Plaintiff does not completely prohibit Korean flight crew members, and the Plaintiff also permits the raising of beard within the scope that does not cause a sense of aversion to others, and the Plaintiff’s assertion that there is no reason to recognize that there is no reason to believe that there is no reason to believe that the Plaintiff’s raising of beard from among the foreign crew members of the Plaintiff, 20 or more members of the Plaintiff, despite having been working for the raising of beard, and that there is no other customer complaints from them, and thus, the Plaintiff’s assertion that it is difficult to recognize that the Plaintiff’s image itself does not interfere with the Plaintiff’s’s health and reliance.

(8) Considering the above, even if the necessity of the Plaintiff’s restriction on the Plaintiff’s raising of a decent appearance with respect to its members in order to enhance its image and establish the work discipline of its members is recognized, it cannot be deemed that there is a reasonable ground for a national to entirely prohibit the Plaintiff’s raising of a beard itself. Therefore, even if the Plaintiff may achieve the Plaintiff’s intent by partially restricting it according to the state or form of the salt so that it may infringe on fundamental rights, it is reasonable to deem that the Plaintiff excessively limits the Plaintiff’s right to freedom of action against male employees belonging to the Plaintiff against the minimum infringement and the balance of legal interests.

9) The Plaintiff asserts that it is practically impossible and rather controversial may arise to determine whether to grant permission based on the state of the state of the settlement of salt, etc. However, as seen earlier, the instant provision provides that foreigners shall be allowed to do so within the extent that does not cause a sense of aversion to others. The instant provision does not completely prohibit the raising of salt itself, but does not seem to be practically impossible to limit it based on the degree of the state of the settlement of salt, etc., and it is not justifiable to completely prohibit the citizens from completely prohibiting the citizens’ fundamental rights on the grounds of the convenience of sanctions.

(10) It cannot be deemed that the instant provision is not unlawful in support of the fact that the Intervenor did not raise salt while working for the Plaintiff without raising any objection to the service regulations for a period of ten years, or that other members of the Plaintiff comply with the instant provision. Meanwhile, the case where the Intervenor is subject to broad restrictions on the appearance of its members, other than the Plaintiff, is difficult to view that the specific case is identical to the instant case, and thus, it cannot be deemed that there is a difference in the unconstitutionality and illegality of the instant provision solely on such circumstances.

3) Whether the instant flight suspension is an occupational necessity or a reasonable order, where reasonable grounds exist.

Preliminaryly, Finine.

A) The parties’ assertion

The defendant and the intervenor asserted that the suspension of flight of this case was unlawful as excessive sanctions against the disadvantage suffered by the intervenor, solely on the ground that the intervenor violated the provisions of this case. The plaintiff asserted that the suspension of flight of this case was unlawful as excessive sanctions against the disadvantage suffered by the intervenor. Accordingly, the plaintiff failed to comply with the corrective order without reasonable explanation even though the plaintiff issued the corrective order against the intervenor on the ground that the violation of the provisions of this case was committed against the intervenor. Thus, the plaintiff asserted that the suspension of flight of the intervenor was a legitimate order of work in light of the plaintiff's attitude that the plaintiff did not neglect the corrective order without reasonable explanation. Thus, in light of the plaintiff's attitude that the plaintiff suspended the intervenor's flight according to occupational necessity and ensuring the safety of aviation, and it cannot be deemed that there was a significant disadvantage to the intervenor

B) Determination

(1) In order for a business order to be recognized as a legitimate business order, it must be based on a reasonable ground for business necessity or performance (see Supreme Court Decision 96Nu13231, Nov. 25, 1997). In order to determine whether a business order is legitimate, it shall be determined by comprehensively taking into account whether the business order is based on a business necessity or a reasonable ground for carrying out the business, and workers’ living disadvantages in accordance with the business order.

(2) Regarding the instant case, even though it is recognized that the Plaintiff’s crew members, including the Intervenor, have the right and duty to confirm whether the Plaintiff is able to safely perform the flight service in order to ensure the safety of aviation, and where it is deemed necessary, an order to suspend the flight, etc. may be issued, considering the following circumstances, it is difficult to deem the ground for the suspension of the flight of this case not because the Intervenor violated the appearance provision of this case, but not because the Intervenor failed to comply with the corrective order. Moreover, it does not appear that the Plaintiff had an occupational necessity or reasonable reason to order the suspension of the flight of this case in order to establish the hours of service and ensure the safety of aviation. Accordingly, even if the instant provision is valid, it cannot be deemed that the business necessity or reasonable reason for the suspension of the flight of this case is not recognized, and thus, the Plaintiff’s assertion cannot be viewed as a justifiable order.

① At least 5:40 on September 12, 2014, Nonparty 1 issued an order to stop operation to the intervenors as the team leader of the Plaintiff’s 320 safe operation team. Nonparty 1 stated that “The Intervenor was under the command of Nonparty 1 to stop operation for a certain flight period from the ordinary director of the company around 5:40 on September 12, 2014.” On the other hand, Nonparty 1 stated that the Intervenor was under the command of Nonparty 1, who was under the command of Nonparty 3, and that he was under the command of Nonparty 1 to stop operation, and that the Intervenor was under the command of Nonparty 1, who was under the command of the Intervenor, was under the command of Nonparty 2. The Intervenor stated that the Intervenor was under the command of Nonparty 1, who was under the command of Nonparty 1 to stop operation, and that the Intervenor was under the command of Nonparty 1, who was under the command of Nonparty 2 and Nonparty 2, who was under the command of Nonparty 1, who was under the command of the Intervenor.

② The Plaintiff asserts that there was an occupational need to order the suspension of flight in order to establish the work discipline and ensure the safety of aviation, since the Intervenor continuously expressed the attitude of “heat in mind,” and did not comply with the corrective order. However, as seen earlier, it is difficult for the Intervenor to understand the Plaintiff on September 15, 2015 and the next 16th day, that “the instant provision discriminates against foreigners and Koreans, and excessively limits physical freedom, so it is difficult for the Intervenor to understand, and even if the Intervenor raises a salt with a religious belief, he promises to manage it well so that the Plaintiff’s image may not be concealed even if he raises a salt with a religious belief,” and first, the Intervenor did not unilaterally explain the “personal belief” and did not explain it at the time of the Intervenor’s refusal. Therefore, the Intervenor did not appear to have known that the Intervenor did not appear to have been able to continue to correct and explain the illegality of the instant provision and the reason that the Intervenor did not appear to have been able to continue to do so.”

③ On September 12, 2014, immediately before the suspension of flight against the Intervenor, Nonparty 2 also stated that “the Intervenor was not found to be mentally and physically inappropriate in the course of flight.”

④ In light of the fact that the Intervenor did not comply with the terms and conditions of the appearance of this case and refused to comply with the corrective instruction, the Plaintiff asserts that there was a need to suspend flight, considering that the Intervenor’s intent to comply with all the Plaintiff’s regulations and instructions was not firm. However, considering that the Intervenor’s entry into the Plaintiff and offered a reasonable reason for the reason that he faithfully performed flight for a period of ten years, and that he raised salt, it is difficult to deem that it is difficult to deem that the Intervenor would not comply with the aviation safety regulations, etc. on the ground that the Intervenor violated the corrective instruction based on the appearance provision of the horse that raises salt

⑤ If it was necessary to verify whether the intervenor’s psychological status, etc. is appropriate for the intervenor’s business, it is reasonable to determine whether the intervenor’s activity was appropriate for the intervenor’s employees, including Nonparty 2, who committed the above-mentioned flight to the P.M. on the same day, rather than to stop the flight solely on the ground that the intervenor failed to comply with the external state of planting salt or the corrective order, and it is also reasonable to confirm whether the intervenor’s activity was appropriate for the intervenor

(6) As a result, an intervenor was not paid flight allowances of about 3.24,00 won out of monthly wages. Article 95 of the Labor Standards Act provides that the amount of reduction shall not exceed 1/10 of average wages per day, and that the total amount of reduction shall not exceed 1/10 of the total amount of wages at one wage payment period. Accordingly, the Plaintiff’s collective agreement on pilot labor-management (BBBB) provides that “the total amount of reduction shall not exceed 1/10 of the total amount of wages at one wage payment period (Article 32 subparag. 4 of the Organization Convention) of the Intervenor’s refusal to return to an intervenor is more unfavorable than 3,240,000 won than the total amount of wages at one wage payment period, and the Plaintiff’s refusal to return to the intervenor’s life without any justifiable reason, despite the Intervenor’s refusal to return to the intervenor’s daily wage payment amounting to 10,000 won, as well as 1/324,000 of the total amount of wages determined by the Intervenor.

7) On the other hand, the Plaintiff asserts to the purport that the suspension of flight in this case is justifiable, since the employee is obligated to comply with the provision, and even if it is deemed that such provision excessively limits the individual freedom, it cannot be deemed that the employee is justifiable. However, if the Plaintiff’s above assertion also provides the unfair provision, the employee is only obligated to comply with it, and if the employee asserts the illegality and fails to comply with the corrective order, the employer can issue a business order, such as excluding the employee from the business, even though the need for the business is not recognized. Therefore, this cannot be accepted.

(8) On the other hand, the case in which a civil petition was filed by the Plaintiff’s employees due to their newness or bad behavior, etc., can be assessed in itself as a morally inappropriate behavior. Thus, the case in which the Intervenor violated the food regulations, cannot be assessed in the same way as the case in which the Intervenor violated such regulations

9) The Plaintiff asserted that the suspension of flight in this case should not determine the legitimacy of the suspension of flight, and that the decision should be made on each date on which the suspension of flight was made ( September 12, 2014, September 14, 15, 15, 16, and 17). However, the legitimacy of the provision in this case and the disadvantage of the Intervenor resulting therefrom does not vary depending on the above period, and there is no circumstance to determine differently the grounds for the suspension of flight or the necessity of the suspension of flight by each day, as alleged by the Plaintiff, even if the instant suspension of flight is individually determined on each day on which the business order was issued, the judgment on the legitimacy of the instant suspension of flight in this case cannot be viewed differently.

4) Sub-determination

The instant provision, which entirely prohibits a national from growing salt on the basis of “national”, is in violation of the Constitution and laws and regulations, and is null and void. As such, the instant flight suspension based on the premise that the Intervenor breached his duty to comply with the instant provision, which is null and void, is unlawful. Even if the instant provision is not null and void, the business necessity and reasonable grounds of the instant flight suspension cannot be deemed to be recognized, and thus, the instant flight suspension is deemed unlawful.

3. Conclusion

The plaintiff's claim shall be dismissed on the ground that it is without merit. The judgment of the court of first instance is unfair on the other hand. Therefore, the judgment of the court of first instance is revoked and the plaintiff'

Judges Lee Dong-won (Presiding Judge)