207Du2704 Invalidity of dismissal

AA

Attorney Park Sang-hoon, YY

대한불교★ ★ 종■■ 사

ZZs of the representative

Law Firm Doz.

담당변호사 SSS, KKK, QQQ

July 27, 2007

September 7, 2007

1. On February 28, 2006, the defendant's dismissal against the plaintiff on February 28, 2006 confirms that the dismissal is null and void.

The same shall apply to the order.

1. Basic facts

가. 피고는 대한불교 ★★종 산하의 사찰로서 상시 근로자 10인 이상을 고용하여 각종 포교, 전법 및 이와 관련된 교육 등의 사업을 하고 있고, 원고는 1984. 4. 00.경부터 피고 사찰에서 근무하기 시작하여 2005. 11. 00.부터는 피고 사찰의 경비실에서 근무하고 있었다.

B. However, according to the Defendant’s inspection accusation on the ground that seven workers of the Defendant temple, who were the Plaintiff’s main axis, joined the Busan Regional Trade Union by forming a trade union around October 2005, and the Defendant’s inspection ordinarily employs not less than 10 workers, etc., but did not report the rules of employment, the Defendant prepared and reported the rules of employment as of January 0, 2006 and the main contents thereof are as follows.

Article 63 (Ipso Facto Retirement) If an employee falls under any of the following subparagraphs, he/she shall retire from office automatically:

1. Where he/she dies;

2. When he/she reaches the retirement age (60 years of age);

3. Where he/she fails to return to the original state within seven days after the period of temporary retirement expires or the grounds for temporary retirement ceases to exist;

The retirement age of employees under Article 64 (Retirement Age) shall be sixty years of age, regardless of the classification of men and women: Provided, That if it is necessary to continue to serve for the reason of necessity, it is possible to serve only for a day after retirement. The provisions of Article 92 (Change) may be changed following a resolution of the personnel committee. In the event of any change, a majority of the employees shall be consulted, and disadvantageous changes shall be sought.

Article 93 (Enforcement Rule) These Rules shall enter into force on January 1, 2006. The defendant submitted part of the rules of employment to the Busan Regional Labor Office on February 2006, and the main contents of the amendment are as follows (hereinafter referred to as the "Rules of Employment of this case including the amended rules of employment").

Article 64 (Retirement Age) The retirement age of employees shall be the date on which 60 years of age reaches 60,000 in general service, extraordinary service, and technical service, regardless of the classification of men and women: Provided, That if it is necessary to continue to serve due to necessity, it is possible to serve as a daily worker after consultation between the parties

Article 1 (Enforcement Date) These Rules shall enter into force on January 1, 2006.

Article 2 (First Amendment Date) The first Amendment to this Rule shall enter into force on February 1, 2006. A person who has passed the retirement age under Article 64 at the time of January 31, 2006 shall be deemed to have reached the retirement age on the last day ( February 1, 2006) corresponding to the enforcement date of these Rules ( February 28, 2006).

D. Next, the defendant, who was born on January 00, 1945, had already reached retirement age above 60 years of age. On the ground that the plaintiff retired from office as of February 00, 2006 in accordance with the Rules of Employment of this case (hereinafter "the retirement disposition of this case").

[Reasons for Recognition] Facts without dispute, Gap evidence 1, Gap evidence 2-1, 2, Gap evidence 8, 12, Eul evidence 1, the purport of the whole pleadings

2. The assertion and judgment

A. The parties' assertion

The Plaintiff asserted that the Defendant unilaterally changed the retirement age of 64 years and 60 years and applied for retirement based on this, and that the instant retirement disposition was null and void due to no justifiable ground, and thus, the Defendant sought confirmation of invalidity thereof. The Defendant cannot be deemed to have changed the working conditions to a disadvantage due to the preparation of the instant employment rules, and further, it is reasonable in light of social norms to set the retirement age of 60 years under the instant employment rules, and therefore, the employees’ consent is unnecessary.

B. Determination

In principle, an employer may prepare and revise the rules of employment according to his/her intent. However, when the preparation and revision of the rules of employment deprives workers of their rights or interests derived from the formulation and revision of the rules of employment and imposes unfavorable working conditions, the consent by collective decision-making method of the workers who were subject to the previous rules of employment or the rules of employment, namely, labor union if there is no labor union consisting of a majority of workers in the workplace concerned, and the consent of the majority of workers if there is no labor union consisting of a majority of workers, and when such consent is not obtained, the revised rules of employment does not apply to the existing workers whose vested interests are infringed, unless it is recognized as reasonable by social norms. Whether the rules of employment is reasonable by social norms and disadvantage to workers should be determined by comprehensively taking into account all the circumstances such as the purpose and process of the revision, the nature of the business of the company concerned, the overall system of each provision of the rules of employment, etc. (see, e.g., Supreme Court Decision

In the instant case, as seen earlier, the Defendant established the instant rules of employment and established the retirement age provision at 60 years old only. The Plaintiff’s assertion that the Defendant had been operating the retirement age at 64 years prior to the creation of the instant rules of employment does not have any evidence to acknowledge it. However, if the Defendant’s employees were to look at the overall purport of oral argument in each of the statements No. 9, 10, and No. 11-1 and No. 2, it is recognized that the employees of the Defendant had been able to continue to work without any restriction even if they were 60 years old before the establishment of the above rules of employment. Since the establishment of the above rules of employment became 60 years old only due to the establishment of the above rules of employment and continued to work above 60 years old age age, the establishment of the above rules of employment constitutes a unfavorable working condition that deprives workers of their rights or interests, including the above rules of employment, due to the lack of consent from the Defendant’s new rules of employment in light of social norms.

Therefore, the above retirement age provision of the Rules of Employment in this case does not have its effect against the plaintiff, and thus, the retirement disposition in this case, based on the above invalid provision, shall be null and void as there is no justifiable ground, and as long as the defendant contests the validity of the above retirement disposition

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition by admitting it.

The presiding judge shall be appointed by a judge;

For judge Laos

Judges Park Gin-uri