The propriety of disciplinary action or removal of a person who is absent from work without permission for 13 days by referring to sick leave without any effort to solve the grievance pursuant to the provisions of Article 76-2 of the State Public Officials Act, etc.

Even if a public official had due to a difficult circumstance, if he was temporarily absent from office for 13 days or without permission under the name of sick leave without making an effort to solve the grievance according to the provisions of Article 76-2 of the State Public Officials Act, this is a measure that is sufficiently acceptable to have the public official choose to be dismissed as a kind of disciplinary action in light of the situation that he/she was subject to disciplinary action three times during the past.

Articles 78(1) and 76 of the State Public Officials Act

Plaintiff

The Administrator of the Macheon Regional Railroad

Gwangju High Court Decision 85Gu24 delivered on June 25, 1985

The judgment below is reversed and the case is remanded to the Gwangju High Court.

The grounds of appeal are examined.

According to the reasoning of the judgment below, since the plaintiff, who had worked as a technician at the No. 1 of the No. 1984, did not work for 8 days at the No. 1984 when the plaintiff applied for the No. 1 of the No. 1984, and the medical certificate was not submitted for 6 days after he did not work for 18 days from the 18th day of the month, the plaintiff was absent from work for 27 and 11 days, but the plaintiff had already used the No. 20 days of the statutory leave, and the plaintiff did not work for 29 days of absence from work for 10 days after he applied for the No. 15 days of absence from work for 18 days from the date on which he applied for the No. 29 and 10 days of absence from work for 6 days of time and 10 days of absence from work for 10 days of time after he was found to have worked for 13 days of absence from work.

However, if the degree of disciplinary action is deemed to be an illegal disposition beyond the scope of discretionary power, it should be deemed that the contents of the disciplinary action should be objectively unreasonable in light of the content and nature of the misconduct which caused the disciplinary action and the administrative purpose to be carried out by the disciplinary action. However, as seen above, since the Plaintiff’s disease, like the above misconduct, was absent from office for 13 days or without permission several times, it should be deemed that the Plaintiff failed to perform his/her duty of good faith as a public official, and even if it was difficult to do so like the judgment of the court below, it should be deemed that the Defendant’s failure to remove the Plaintiff from office without permission referred to in Article 76-2 of the State Public Officials Act, and it should be deemed that the Defendant’s failure to comply with the above disciplinary measure was an unfortunate of 10th anniversary of the issuance of the above disciplinary action by 10th anniversary of 2,34,600 square meters in favor of the Plaintiff’s office.

The court below decided that the defendant's dismissal disposition is an illegal disposition beyond the scope of discretion, on the grounds as stated in its holding, is against the rules of evidence that misleads the plaintiff about the evaluation of work, misunderstanding the legal principles as to the right to discretion on disciplinary action, or misunderstanding the legal principles as to disciplinary action and the corresponding level of disciplinary action. Therefore, there is a ground for appeal to this point

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-sik (Presiding Justice)