Plaintiff (Attorney Kim Jae-soo et al., Counsel for the plaintiff-appellant)

Hyundai Heavy Industries Co., Ltd. (Law Firm LLC, Attorneys Park Ban-ri et al., Counsel for the plaintiff-appellant)

March 29, 2017

Ulsan District Court Decision 2015Na20700 Decided July 7, 2016

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance is revoked. The Defendant’s dismissal against the Plaintiff on January 23, 2015 confirms that the dismissal is null and void. The Defendant shall pay KRW 7,299,839 each month to the Plaintiff from January 24, 2015 to the time the Plaintiff is reinstated.

1. Basic facts

The reason why this Court is to use this part of the reasoning of the judgment of the court of first instance is as follows, and except for the addition of the "written evidence No. 15" as evidence of the reasoning of the judgment of the court of first instance, the reasoning of the judgment of the court of first instance is the same as that of Paragraph 1 of Article 420 of the Civil Procedure Act. Thus, this part is cited as it is in accordance with the main text

[Supplementary Use]

H. The rules of employment and collective agreement of the Defendant Company include the following:

본문내 포함된 표 〈취업규칙〉 제2장 인사 제16조의1(해고사유) 종업원이 다음 각 호의 1에 해당한 때에는 해고할 수 있다. 5. 징계해고에 해당한 때 6. 근무성적 또는 능력이 현저하게 불량하여 직무를 수행할 수 없다고 인정되었을 때 제17조(해고의 예고) ① 회사는 종업원을 해고할 때에는 60일 전에 예고한다. 다만 천재, 사변, 기타 부득이한 사유로 사업계속이 불가능한 경우 또는 근로자가 고의로 사업에 막대한 지장을 초래하거나 재산상 손해를 끼친 경우에 노동부 장관의 승인을 받은 때에는 그러하지 아니한다. 제18조(해고수당) 예고하지 아니하고 해고할 때에는 30일분 이상의 평균임금을 해고수당으로 지급한다. 제21조(복무사항) 종업원은 다음 사항을 준수하여야 한다. 1. 항상 건강에 유의하고 명랑활발한 태도로써 근무하여야 하며 회사의 제 방침을 준수하여야 한다. 2. 항상 시간을 엄수하며 업무는 정확, 신속히 처리하고 업무의 능률화를 도모한다. 제5장 포상 및 징계 제68조(징계의 종류) 7. 징계해고: 이 규칙 또는 사규에 위반된 행위가 특히 중대하고, 현저한 경우 제69조(징계사유) 종업원이 다음 각 호의 1에 해당될 때에는 징계한다. 1. 이 규칙 제21조에 정하고 있는 복무사항에 위배되는 행위를 한 때 2. 정당한 이유 없이 1개월 중 3일 이상 계속 또는 빈번하게 결근하거나, 지각 조퇴가 빈번할 때 3. 근태 또는 작업시간을 허위로 조작한 때 4. 근무시간 중에 취침하거나 음주행위를 한 때 5. 사기 또는 부정한 방법으로 채용되었음이 발견되었을 때 6. 정당한 이유 없이 회사가 발행한 문서, 도면, 제 증명서 및 식권, 승차권, 입욕권 등 각종 쿠폰을 위조, 변조하거나 타인에게 대여, 유용한 때 7. 허가 없이 회사의 문서, 장부, 사양서(사양서) 등을 외부에 열람시킨 때 8. 허가 없이 출입금지 장소에 출입한 때 9. 고의 또는 중대한 과실로 회사의 시설, 기계, 기물, 집기류를 훼손 또는 감소한 때 10. 사내 또는 작업장에서 회사의 승인 없이 사익(사익)에 반하는 불순 유인물 및 서적 등을 배포하거나 작업자를 선동 규합하려는 행위를 한 때 11. 기타 전(전) 각 호에 준하는 사유에 해당하는 때 제73조(징계절차) ① 감봉 이상의 징계는 징계위원회를 통하여야 한다. ② 회사는 징계를 하고자 할 때에는 대상자의 징계사유, 징계위원회 개최일시 및 장소를 명시하여 해당 종업원과 조합에 회의 7일전까지 서면 통보한다. ③ 징계위원회는 해당 종업원에게 소명의 기회를 부여하여야 하며, 조합 임원 등 3인이 참고인으로 참석하여 변론할 수 있으며, 3인 이내의 증인 신청을 할 수 있다. ④ 단체협약 제35조에 의거 이의제기를 하였을 경우 회사는 요청받은 날로부터 15일 이내에 징계위원회를 개최하고 결정한 날로부터 7일 이내에 피징계자에게 통보한다. ⑤ 징계위원회의 출석통보를 받고 정당한 사유 없이 응하지 않을 때에는 진술을 포기한 것으로 간주한다. 〈단체협약〉 제32조(징계의 절차) 감봉 이상의 징계는 징계위원회를 통해야 하며 다음 절차에 의하지 않은 징계는 무효다. 1. 회사는 징계를 하고자 할 때에는 대상자의 징계사유, 징계위원회의 개최일시 및 장소를 명시하여 해당 조합원과 조합에 회의 7일 전까지 서면 통보한다. 2. 징계위원회는 해당 조합원에게 소명의 기회를 부여하여야 하며, 조합임원 등 3인이 참석하여 변론할 수 있으며, 3인 이내의 증인신청을 할 수 있다. 3. 본 협약 제35조에 의거 이의제기를 하였을 경우, 회사는 요청받은 날로부터 15일 이내에 징계 위원회를 개최하고 결정한 날로부터 7일 이내에 피징계자에게 통보한다.

2. The plaintiff's assertion and judgment

(a) Whether it is null and void as a disciplinary dismissal without undergoing disciplinary procedures;

1) The plaintiff's assertion

The dismissal of this case constitutes a disciplinary dismissal not only ordinary dismissal but also disciplinary dismissal. Even if the dismissal of this case has the character as a disciplinary dismissal but also ordinary dismissal, disciplinary proceedings may not be omitted. The defendant did not undergo disciplinary proceedings under Article 32 of the collective agreement and Article 73 of the Rules of Employment on the ground that the dismissal of this case does not comply with legitimate procedures. Thus, the dismissal of this case is null and void because it does not comply with legitimate procedures.

2) Determination

In full view of the following circumstances, the dismissal of this case is not a disciplinary dismissal, but an ordinary dismissal. Therefore, the plaintiff's above assertion based on the premise that the dismissal of this case constitutes a disciplinary dismissal or disciplinary dismissal or an ordinary dismissal cannot be accepted.

(1) The collective agreement or rules of employment distinguish between the head of “personnel” and “Disciplinary Action” from the head of “personnel” and the head of “personnel management” respectively. In ordinary cases, the grounds for dismissal, the grounds for disciplinary action, and the kind of disciplinary action (including dismissal from disciplinary action) and the disciplinary procedure are determined. In this case, the personnel management (section 2) and the reward and disciplinary action (section 5) under the rules of employment of the defendant company are distinguished from each other. The head of the personnel management also specify the grounds for dismissal in Article 16-1 and the grounds for disciplinary action in Article 69 in each case. In particular, Article 16-1 of the Rules of Employment of the defendant, which provides for the grounds for dismissal, provides that “where the defendant’s work performance or ability is recognized to be unable to perform his/her duties due to a significant lack of job performance or ability,” respectively.

② Disciplinary dismissal is a disciplinary action that imposes a responsibility on the perpetrator for the past misconduct or disturbance of corporate order. As such, the worker’s sex and ability itself cannot serve as a ground for dismissal in disciplinary dismissal, and the worker’s “specified act” constitutes an act that disturbs corporate order, etc. However, it is a matter of issue as a ground for dismissal. In this case, Article 69 of the Defendant’s Rules of Employment stipulates that disciplinary action may be taken against a worker when the worker “a certain act” is committed, and thus, the Defendant should be presumed to have dismissed by taking into account the Plaintiff’s specific act as a matter of discipline.

그런데 아래에서 보는 바와 같이 피고는 원고의 특정한 행위를 문제 삼아 해고한 것이 아니라 원고의 ‘근무성적 또는 근무능력 불량’을 이유로 해고한 것이므로, 이는 징계해고가 아니라 통상해고에 해당하는 것으로 판단된다(이와 관련하여 원고는 “피고 회사의 취업규칙 제69조 제1호는 ‘이 규칙 제21조에 정하고 있는 복무사항에 위배되는 행위를 한 때’를 징계해고사유로 규정하는 한편, 취업규칙 제21조 제2호는 ‘항상 시간을 엄수하며 업무는 정확, 신속히 처리하고 업무의 능률화를 도모한다.’라는 복무사항을 규정하고 있다. 그런데 피고 회사의 원고에 대한 근무평가서에는 ‘업무의 질이 낮고, 검토결과를 신뢰할 수 없다. 검토 의뢰에 대한 처리속도 및 양적인 면에서 기여도가 낮다.’는 등의 내용이 포함되어 있는바, 이와 같은 사유는 취업규칙 제21조 제2호 후단을 위반한 것으로서 취업규칙 제69조 제1호에 따라 징계해고사유에 해당한다.”는 취지로 주장한다. 그러나 ❶ 피고 회사의 취업규칙 제69조 제1호에 의한 징계해고도 근로자의 성상이나 능력 자체를 해고사유로 삼는 것이 아니라 ‘근로자의 일정한 행위’가 취업규칙 제21조에서 정하고 있는 복무사항에 위배되는 경우에 해고사유로 삼는다는 의미임이 그 문언상으로도 분명한 점, ❷ 원고에 대한 근무평가서에 기재된 위와 같은 내용은 근무평가를 함에 있어서 그 평가의 근거를 제시한 것에 불과한 점 등에 비추어 보면, 위와 같은 취업규칙의 규정이나 근무평가서의 일부 내용을 들어 이 사건 해고가 징계해고에 해당한다고 볼 수는 없다. 원고의 이 부분 주장도 받아들일 수 없다).

B. Whether dismissal in violation of Article 27 of the Labor Standards Act is null and void

1) The plaintiff's assertion

The notice of termination of the contract issued by the Defendant to the Plaintiff on January 16, 2015 does not stipulate any reason. The Defendant’s dismissal of the Plaintiff by issuing the above notice of termination of the contract is null and void because it violates the provisions of Article 27 of the Labor Standards Act, which provides that the grounds for dismissal and the time of dismissal shall be notified in writing.

2) Determination

Article 27 of the Labor Standards Act provides that the employer has the effect of written notification of the grounds for dismissal and the time of dismissal in order for the dismissal of a worker. This is to ensure that the employer is careful in dismissing the worker through written notification of the grounds for dismissal, and that the dispute surrounding the existence and time of dismissal and the reason therefor can be settled in an appropriate and easy manner after the dismissal, and that the employer can properly respond to the dismissal of the worker. Therefore, when the employer gives written notice of the grounds for dismissal in advance, the employer must be able to know in detail what is the grounds for the dismissal in the location of the worker. However, if a person subject to dismissal is already aware of what is the grounds for dismissal and is sufficiently responding thereto, it cannot be said that the notification of dismissal in violation of the above provision is not deemed to be a notification of dismissal, even if the reason for dismissal was not written in detail (see Supreme Court Decisions 2012Da81609, Dec. 24, 2014; 2014Da7434, Jul. 9, 2015).

In other words, according to the statement of evidence Nos. 5 and return to the instant case, the Defendant’s notice of termination of the contract issued on January 16, 2015 to the Plaintiff is merely stated in the notice of termination of the contract, “us shall notify you that you will terminate the employment contract with you on January 23, 2015, according to the provisions of Paragraph 2 of the employment contract concluded on March 8, 201,” and it is recognized that there is no specific ground for dismissal.

However, considering the following facts: Gap evidence 21, Eul evidence 1 through 5, Eul evidence 16, 18, and 37 and the testimony of the witness of the court of first instance, the court below decided that the plaintiff was willing to work until the 2013rd anniversary of the termination of the contract on the ground that the non-party 1's regular director around October 2012 constitutes the subject of termination of the contract; ② the non-party 1 sent the plaintiff's notice of resignation to the head of the court of first instance; ② the non-party 2's explanation of the results of the interview with the plaintiff 1 and the non-party 2's explanation about the non-party 1 and the non-party 2's explanation about the non-party 2's resignation. The non-party 1 and the non-party 2's explanation about the non-party 2's explanation about the non-party 1 and the non-party 3's opinion on the non-party 2's completion of the contract.

According to the above facts of recognition, it is determined that the Plaintiff, as well as the Plaintiff, was aware of what the reasons for the dismissal of the Plaintiff, and was able to properly respond thereto. Thus, the dismissal in this case cannot be deemed as a violation of the provisions of Article 27 of the Labor Standards Act, solely on the ground that the notice of termination of the contract as of January 16, 2015 does not contain specific reasons for dismissal. The Plaintiff’s assertion on this part cannot be accepted.

(c) Whether dismissal without justifiable grounds is null and void;

1) The plaintiff's assertion

The Plaintiff had served in good faith as an attorney-at-law belonging to the International Law Team of the Defendant Company, and had no particular problem in maintaining labor contract relations. The assessment criteria per se for the Plaintiff’s work evaluation of the Defendant Company were unreasonable, and accordingly, the work reputation was distorted by Nonparty 1, who is not good between the Plaintiff and the Plaintiff. Meanwhile, the Defendant did not endeavor to avoid dismissal, such as granting the Plaintiff an opportunity for retraining or reallocation of duties. Accordingly, the dismissal of the instant case is null and void because there is no justifiable reason.

2) Determination

In the case of dismissal of a worker on the grounds of poor work performance or work ability, whether such dismissal has justifiable grounds under Article 23 of the Labor Standards Act shall be determined reasonably by comprehensively taking into account all the circumstances, such as whether the work evaluation was conducted based on fair and reasonable standards, whether the work evaluation can be deemed considerably lacking in the job performance ability of the worker concerned to the extent that it is impossible to continue the labor contract relations, whether the worker has been given an opportunity to improve through re-education or re-disposition, the intention and adaptation ability of the worker after being given the opportunity for improvement, and what the status

In other words, in full view of all the following circumstances, the Defendant’s dismissal of the Plaintiff on the ground of lack of work performance or work ability, based on the following circumstances, which can be acknowledged by adding up the entire purport of the pleading to the entries of the Health Team return to the instant case, Eul’s evidence 1 through 7, Eul’s evidence 16, 18, 26 evidence, Eul’s evidence 27-1 through 5, Eul’s evidence 27-1, and Eul’s evidence 33-1, and the witness Nonparty 1’s testimony of the first instance court, it is deemed that there is justifiable reason for the Defendant

① The Defendant subdivided the assessment items into eight categories (professional knowledge, understanding and judgment, human relations, sense of responsibility, awareness of cost reduction and improvement, discipline, good faith, contribution level), and arranged the assessment criteria so that the assessment can be conducted in a multiple sense by allocating points to each item. Such assessment criteria have been established prior to the Plaintiff’s entry into the Defendant Company. The assessment criteria set out by the Defendant Company was not the “large-Scale Evaluation Method,” but rather the “large-Scale Evaluation Method,” which allocates a certain percentage to the Defendant Company. Meanwhile, the assessment criteria established by the Defendant Company are not the “large-Scale Evaluation Method,” but rather the “large-Scale Evaluation Standards,” which are not the “large-Scale Evaluation Method,” but rather the “large-Scale Evaluation Standards.” However, this is merely due to the characteristics of duties performed by an international attorney-at-law. Therefore, it is difficult to deem the assessment criteria itself unreasonable based on such circumstances.

② The Plaintiff’s work evaluation was conducted five times every five years during the period of service in the Defendant Company. The said evaluation was conducted in a way that averages the 1 and 2 evaluation scores assessed by multiple evaluators (the head of the International Legal Team and the person in charge). While the Plaintiff worked in the Defendant Company, the specific details of the work evaluation conducted for the attorneys-at-law belonging to the International Legal Team are as follows.

[Attachment 1] Details of work evaluation from 2010 to 2014

The average of the first (non-party 1) second (non-party 7) (non-party 1) of the 2nd (non-party 1) of 2nd (non-party 7) 1 of 2014, 2010, 2010, 2010 to 305: 92929292929 B/ 988929889288988899929197,929297, 9797, 9797, 9797, 9797, 9797, 97, 97, 97, 97, 97, 97, 97, 97, 97, 97, 97, 97, 97, 97, 97, 97, 97, 97, 97, 994

According to the above work evaluation, the Plaintiff had been employed at the lowest level among the international lawyers belonging to the International Legal Team for five consecutive years in which he/she had worked for the Defendant Company. In particular, from 2012 to 2014, the Plaintiff had been employed for three consecutive years (74 points). Meanwhile, from 2012 to 2014, the Plaintiff’s work reputation point in the Plaintiff from 2012 to 2014 is a situation in which the average points of other attorneys except the Plaintiff, as described below, are accurately different from the average points of other attorneys.

[Attachment 2] Preparation for the plaintiff's work reputation point and the average score of other attorneys-at-law

The plaintiff's average score of other attorneys at the work level in the attached year included in the main sentence shall be July 72, 2012 829.2, 2011.86 August 201, 2014 70 92

③ From June 2013, the Defendant mainly entrusted the Plaintiff with the review of the contract, and took measures to enable the Plaintiff to control and guide the Plaintiff’s work. Nevertheless, in the work evaluation in 2013, the Plaintiff was placed at work level who is subject to termination of the contract on the ground that “the Plaintiff was pointed out in the process of work to improve defects, but no performance would result in them.” (In relation to the work evaluation in 2013, Nonparty 8, who was in charge of the head of the International Legal Team at the time, was not in charge of the task at the time, did not accurately examine major risks in conducting legal affairs, such as the review of the contract, arbitration/litigation support, etc., and lack of detailed review. As the Plaintiff’s written opinion is found to have been considerably modified in the review of the final text, the Plaintiff did not submit a report that it is entirely believed that the work is entirely believed.”

Although the Defendant granted the opportunity to improve the ability to work while working for more than one year to the Plaintiff, the Plaintiff had re-exploited the work reputation falling under the subject of termination of the contract on the ground that “the results of the review have been modified and supplemented, but no development has been made,” etc. in the work evaluation in 2014 (in relation to the work evaluation in 2014, Nonparty 9, who was in charge of the head of the international law team division, submitted a report stating that “the degree of difficulty of the work assigned to the Plaintiff is very low compared to other attorneys, but the quality of the work performed by the Plaintiff is lower than that of other attorneys).”

④ The Plaintiff had been employed at the lowest level for five consecutive years in service with the Defendant Company, and had been employed for three consecutive years from 2012 to 2014, the Defendant recommended the Defendant to resign under the condition of payment of wages for six months without immediately concluding the contract, or recommended the transfer to another affiliate within the group. However, the Plaintiff rejected all these proposals.

⑤ The Defendant is a company with a large portion of overseas sales, and the conclusion of the English contract and relevant international arbitration cases are frequently occurred at the present business department of the seven business departments. Attorneys-at-law belonging to the International Legal Team of the Defendant Company are in charge of the above-mentioned English contract-related business and international arbitration-related business. As such, given the nature of the business, a small number of rooms alone risking considerable economic loss to the company, the said attorneys-at-law should be deemed to have an individual ability to carry out such business affairs to the extent that he/she can smoothly deal with such business affairs. Considering the above circumstances, it is reasonable to evaluate the attorneys-at-law belonging to the International Legal Team of the Defendant Company for the significant reason that the lack of continuous and significant

D. Sub-committee

The dismissal of this case is ordinarily conducted through legitimate procedures and is deemed to have legitimate grounds. On the other hand, the plaintiff's claim of this case seeking confirmation of invalidity of the dismissal of this case and payment of wages and consolation money cannot be accepted.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed.

Judges Soh-ho (Presiding Judge) Constitution of Kim Jong-ho

1) The persons listed in the Overall title are the head of the department or the managing director of the International Legal Team in charge of work evaluation.

2) The Plaintiff asserts to the effect that “Around October 2012, the arbitration case was closed between Nonparty 1 and Nonparty 1’s regular manager intentionally lower the level of work reputation for the Plaintiff.” However, in the case of a work evaluation in 2013 and 2014, Nonparty 1’s secondary manager was assessed after Nonparty 7’s primary evaluation, and Nonparty 7’s employment reputation for the Plaintiff was also considered to fall under KRW 71, respectively. Therefore, it does not seem that Nonparty 1 intentionally distorted the work reputation for the Plaintiff.

3) In relation to this, the Plaintiff asserts to the effect that “the Defendant had the Plaintiff perform only the review of the contract so that it was practically excluded from the work.” However, the Plaintiff’s primary performance of the review of the contract after June 2013 seems to be due to the failure to improve his work ability even in the process of performing the review of the contract corresponding to the basic work as an international attorney-at-law. Therefore, this part of the Plaintiff’s assertion is unacceptable.