(영문) 서울중앙지방법원 2019.11.22. 선고 2018가합567254 판결

The Defendant confirms that dismissal against the Plaintiff on August 28, 2017 by the Defendant is null and void. The Defendant confirms that dismissal against the Plaintiff is null and void:

A. From August 29, 2017 to the delivery date of a copy of the complaint of this case, 50,400,000 won and the amount calculated by the rate of 6% per annum and 15% per annum from the next day to the day of complete payment, and (b) from August 29, 2018 to the day of the Plaintiff’s reinstatement, the amount calculated by the rate of 4,200,000 won per annum shall be paid, respectively.

Reasons

1. Basic facts

A. The Defendant is a stock company that runs engineering and construction business related to high voltages transmission, and the Plaintiff was an employee of the Defendant who was employed by the Defendant in charge of quality control-related business on January 19, 2015.

B. On August 22, 2017, the Plaintiff prepared a resignation statement stating that “I will submit to the Defendant the resignation of the company in order to resign as part of August 28, 2017 on the one-year reason for the Plaintiff (the one-year leave of absence due to admission to a related field).”

C. On August 23, 2017, the following day, the Plaintiff sent a mobile phone text message stating that “I will resign from office to the Vice-Chairperson C of the Defendant, and then will cancel the submission of resignation and other documents if the management’s approval was known.”

D. On August 28, 2017, the Defendant notified the Plaintiff of his intention to resign through the submission of “the Plaintiff’s staff” to the effect that he was immediately accepted on August 22, 2017 and was normally approved, and that he was aware of the fact that he was treated as the retirement on August 28, 2017 of the request.

E. The main contents of the Defendant’s employment rules and official authority rules related to the instant case are as shown in the attached Form.

【Ground for recognition】 The fact that there has been no dispute, entry of Gap Nos. 4, 5, 6, and 8, and the purport of the whole pleadings

2. Summary of the plaintiff's assertion

The plaintiff filed an application for leave of absence with the defendant for admission to a graduate school, but the defendant's submission of resignation without approval of leave of absence is different from the intent of the plaintiff's internal deliberation. In accordance with the proviso of Article 107 (1) of the Civil Act, the submission of the plaintiff's private staff constitutes invalid.

Even if the plaintiff's letter of resignation is submitted, the plaintiff withdrawn his/her intention of resignation on August 23, 2017, the following day after the submission of the letter of resignation. Nevertheless, the defendant unilaterally retired from his/her office without good cause, and thus, it constitutes unfair dismissal.

Therefore, the defendant's retirement disposition against the plaintiff is null and void, and the defendant is obligated to pay the plaintiff unpaid benefits and delay damages.

3. Judgment on the claim for nullification of dismissal

(a) Facts of recognition;

The following facts are not disputed between the parties, or are recognized by each entry in Gap evidence Nos. 2, 7, 8, and Eul evidence Nos. 1, 2, and 4 (including the number; hereinafter the same shall apply), the witness D's testimony and the whole purport of pleading.

1) In order to introduce E technology into Korea, the Defendant concluded a business agreement with the U.S. G company and jointly invested and established by joint investment. On December 14, 2012, the Defendant has entrusted the operation of E-related technology to the H of the French H of the Republic of Korea (I) and received local skills by entrusting all employees who were employed in the technical job group with the technology group related to E.

2) On January 19, 2015, the Plaintiff joined the technical occupational group and was in charge of quality control-related affairs. The Defendant participated in the curriculum (I) operated in the UK for 2015, 6 months, and 5 months, respectively, in order to incorporate the Plaintiff into the E Conversion Facility Construction Project. In relation to the participation in the above curriculum, the Plaintiff entered into an agreement with the Defendant to reimburse expenses incurred in the retirement of the Plaintiff.

3) However, on July 2017, prior to the expiration of the compulsory period of study due to the Plaintiff’s participation in the above curriculum, the Plaintiff requested a director in charge of personnel management to approve temporary retirement for personal study by notifying his/her director in charge of personnel management of his/her decision to enter a graduate school.

4) However, the Defendant Management Committee decided not to approve the Plaintiff’s application for leave of absence.

5) On July 31, 2017, the Plaintiff requested the Defendant Planning Team D’s agent, by e-mail, to provide information on the relevant form, procedure, and date of resignation due to entering a graduate school. On the same day, D’s agent sent the form related to resignation to the Plaintiff by e-mail and provided guidance on the procedure of resignation.

6) On August 16, 2017, the Plaintiff sent to the head of KK team an e-mail called “related to the date of submission of the e-mail,” which contains the content of the written resignation (21th of the same month), the last attendance date (22th of the same month), etc., with an expression of his/her intent to resign as of the 28th of the same month for self-development, because of an unauthorized relation with temporary retirement for entering a graduate school.”

7) On August 21, 2017, D’s agency confirmed that the “written consent for offsetting the educational expenses” was omitted from among the forms of the submission of resignation that the Plaintiff first informed, and sent to the Plaintiff e-mail a form related to resignation, including the written consent for offsetting. On the same day, the Plaintiff sent e-mail to the Plaintiff e-mail that the Plaintiff would offset his/her retirement pay and the educational expenses that should be returned.

8) On August 22, 2017, the Plaintiff: (a) voluntarily designated the withdrawal date as the 28th day of the same month; (b) prepared a secret and set-off statement; and (c) submitted it to D agency; (d) sent the e-mail of the title “private workers” to all the employees of the Defendant; and (c) returned the employee card, welfare card, etc. to the Defendant.

9) The chief of the J headquarters has completed the resignation process by making an oral report to the defendant representative director on the same day.

10) On the other hand, the C head of the team knew that the Plaintiff’s educational expenses to be returned to the Plaintiff during an interview with the Plaintiff on the same day are KRW 49 million, and asked the Plaintiff whether it is possible to reduce the recovered educational expenses.

11) On August 22, 2017, D Representation sent to the Plaintiff an e-mail of the title “the details of calculation of the amount to be collected,” stating retirement pay, performance-based bonus, and the amount to be paid and the payment deadline for the final education, by reference to hiding the Defendant’s representative director.”

12) On August 23, 2017, on the following day, the C head of the team sent text messages to the Plaintiff that it is difficult for the Plaintiff to reduce educational expenses, and the Plaintiff immediately sent text messages to the C head of the team to the effect that he/she would withdraw his/her resignation by text messages.

B. Whether the Plaintiff’s submission of resignation materials is invalid as a false representation of the truth

In a case where an employer receives a written resignation from an employee and concludes an employment contract by taking the form of dismissal from a member of the employee who accepts it, if the employer had an employee who has no intention to resign prepare and submit a written resignation without any choice, it shall be deemed that the employment contract is terminated by the employer’s unilateral intent and thus constitutes dismissal. However, otherwise, inasmuch as the employment contract relationship between the employer and the employee is terminated by accepting a written resignation declaration following the submission of the written resignation, the employer’s dismissal from office cannot be deemed an employer’s dismissal from office (see, e.g., Supreme Court Decisions 2002Da60528, Apr. 11, 2003; 2015Da211630, Aug. 27, 2015).

'Voluntary intention' in a declaration of intention, which is not a true intention, refers to the idea of the voter who intends to express a specific content, and it does not refer to the fact that the speaker is bound to express his/her intent in a genuine mind. Thus, even if the content of the expression of intention is not bound by the genuine mind, it cannot be deemed as the expression of intention, which is not a true intention, in the current situation where it is judged to be the best in that it is, and thus, if it was declared in a genuine manner, it cannot be deemed as the expression of intention, which lacks the intention of internal effect (see, e.g., Supreme Court Decisions 2002Da11458, Apr. 25, 2003; 2015Da211630, Aug. 2

As seen earlier and the following circumstances revealed, it is reasonable to view that at the time of the Plaintiff’s submission of resignation, the Plaintiff was the best to resign from a graduate school in the current situation even if the Plaintiff did not actually express his/her intent to resign, and that the Defendant was the Defendant to have the authority to make a final decision on whether to approve the Plaintiff’s temporary retirement. Therefore, it cannot be deemed unlawful or unjust to deny the Plaintiff’s application for temporary retirement by holding a management committee. Upon the Plaintiff’s non-approval of the application for temporary retirement, the Plaintiff requested D agency to provide guidance on the procedure of resignation and relevant documents, etc., and sent e-mail to the employee before the Defendant on August 22, 2017, which led to the Plaintiff’s submission of resignation. In full view of the following circumstances, it is reasonable to deem that at the time of the Plaintiff’s submission of resignation, the Plaintiff was the Plaintiff’s submission of resignation by deeming that it was the best to resign from a graduate school in the current situation even if he/she did not actually express his/her intent to resign.

C. Whether the Plaintiff’s resignation or resignation is withdrawn

The declaration of intention to resign is deemed a notification of cancellation to the effect that the relevant employment contract is terminated, barring any special circumstances, and in case where the declaration of intention to resign is deemed a notification of cancellation, the employee shall not withdraw it without the consent of the employer, as long as such declaration of intention reaches

However, in a case where an employee presents his/her resignation to make an offer for termination of the agreement on the labor contract relations, he/she may withdraw his/her expression of consent before the employee reaches the employee’s intention. However, such withdrawal is not allowed only in extenuating circumstances deemed contrary to the good faith principle, such as where the employee’s expression of intention to resign causes unexpected damages to the employer. Whether the employee’s expression of intention to resign is a cancellation notice or a notice of intent to terminate the relevant labor contract, or whether the employee’s subscription for termination of the agreement on the labor contract relations with the employer should be determined by taking into account all the circumstances such as the details of the written resignation stating his/her expression of intent, the motive and circumstance leading up to the preparation and

(See Supreme Court Decisions 99Du8657 delivered on September 5, 2000, 2007Da11668 delivered on October 11, 2007, etc.)

In light of the above facts and the following circumstances known from the above facts, i.e., ① when the Plaintiff applied for temporary retirement on the ground of entrance into a graduate school and refused by the Defendant, the Plaintiff expressed his intention of resignation on several occasions, and the content of the employee’s resignation submitted on August 22, 2017 appears to the effect that the employment relationship would be terminated finally rather than seeking the Defendant’s consent to resignation under the language and text. According to Article 55 of the Rules of Employment of the Defendant, the employee is required to obtain the approval of the company when the employee retires. However, this is deemed to provide for the general procedure for retirement, but it is insufficient to regard the employee as an offer for termination of the agreement that is not a notice of cancellation of the employee’s intention (the notice of termination of the contract may require the company’s approval procedure in the sense that the employee’s intention to resign is confirmed and accepted). Therefore, it is reasonable to deem that the Plaintiff’s declaration of intention to resign through the resignation on August 22, 2017 is a notice of termination of the employment contract.

Even if the Plaintiff’s declaration of intention to resign was made by agreement, the person on the duty to resign under the provisions on the Defendant’s duty and authority is the president. On August 22, 2017, when the Plaintiff submitted the resignation, the Defendant’s oral report was made to the Defendant representative director on the same day (the Defendant’s refusal of the approval of the Defendant representative director on the resignation submitted by the Plaintiff, and there was an error in the procedure under the provisions on the Defendant’s duty and authority, and there was no effective procedure of resignation. However, since the Plaintiff’s resignation was made oral report to the Defendant representative director, there is no illegality in the rules on the Defendant’s duty and authority, since D’s agent sent e-mail to the addressee as the Plaintiff, by referring to hiding the Defendant’s representative director, and by referring to the concealment of the Defendant’s representative director, it is reasonable to deem that the Plaintiff’s declaration of intention to resign was also reached the Plaintiff. Accordingly, the withdrawal of the Plaintiff’s declaration of intention to resign on August 23, 2017.

Ultimately, it is difficult to see that the withdrawal of the Plaintiff’s intention to resign is effective.

D. Sub-determination

The Plaintiff’s submission of the Plaintiff’s resignation cannot be deemed as a declaration of intention, and it is difficult to see that the declaration of intention to resign has been effectively withdrawn. As such, the relationship between the Plaintiff and the Defendant’s labor contract was terminated upon the lapse of August 28, 2017, which was indicated in the Plaintiff’s resignation and the Plaintiff’s written resignation. On a different premise, the Plaintiff’s claim for confirmation of invalidity of the termination of the labor contract as of August 28, 2017, asserting that the termination of the labor contract is unfair, is without merit.

4. Determination as to the claim for unpaid wages

As seen above, since the labor contract relationship between the plaintiff and the defendant after August 28, 2017 ends, the plaintiff's claim for wage payment on a different premise is without merit without further review.

5. Conclusion

All of the plaintiff's claims are dismissed as it is without merit. It is so decided as per Disposition.