Plaintiff (Appointed Party)

The Chairman of the National Labor Relations Commission

J. S.S. et al. (Law Firm CSS, Attorneys Kim Shin-young, Counsel for the plaintiff-appellant)

October 24, 2008

1. The plaintiff (appointed party)'s claim is all dismissed.

2. The costs of the lawsuit shall be borne by the Plaintiff (Appointed Party), including the part resulting from the supplementary participation.

중앙노동위원회가 2008. 4. 24. 원고(선정당사자, 이하 ‘원고’라고 한다) 및 나머지 선정자들(이하 원고 및 선정자 2 내지 6을 통틀어 ‘원고 등’이라고 한다)과 피고보조참가인(이하 ‘참가인 회사’라고 한다)들 및 주식회사 스텝포유, 스피드파워월드 주식회사(이하 참가인 회사들 및 나머지 회사들을 통틀어 ‘참가인 회사들 등’이라고 한다) 사이의 2008부해86 내지 91/부노19 내지 24호 부당해고 및 부당노동행위구제 재심신청 사건에 관하여 한 재심판정을 취소한다.

1. The circumstances leading to the decision on reexamination of this case

A. All of the participating companies, etc. are companies employing approximately 55 or 170 full-time workers within Bupyeong Factory by contracting some of the production processes of Bupyeong Factory from the IM Treatmenttoo-Tech Ltd. The Korean Metal Trade Union (hereinafter referred to as the "Appointed Trade Union") is an industrial trade union at a national level established with the organization of workers belonging to the nationwide metal industry. The plaintiff et al. worked for the participating companies as production workers in the participating companies, etc. as shown below, and worked for the designated parties, etc. as the executives of the Nowon-domination and treatment Motor Vehicle and Non-regular Workers' Association (hereinafter referred to as the "the branch of this case") established on September 2, 2007, and the plaintiff et al. did not enter the facts of dismissal from each of the participating parties in the university (hereinafter referred to as "the resume of this case") as the grounds for dismissal from each of the participating parties at the time of dismissal from the university (hereinafter referred to as "the resume of each case").

본문내 포함된 표 근로자 이 사건 지회 내 지위 사용자 입사일 해고일 원고 연대사업부장 주식회사 진합오에스에스 2003. 9. 1. 2007. 9. 12. 선정자 2(대법원 및 항소심 판결의 원고 2) 지회장 대일실업 주식회사 2003. 11. 18. 2007. 9. 12. 선정자 3(대법원 및 항소심 판결의 원고 3) 부지회장 주식회사 스텝포유 2006. 6. 8. 2007. 9. 17. 선정자 4(대법원 및 항소심 판결의 원고 4) 사무장 대우제일 주식회사 2006. 4. 20. 2007. 9. 10. 선정자 5(대법원 및 항소심 판결의 원고 5) 조직부장 스피드파워월드 주식회사 2006. 7. 1. 2007. 9. 12. 선정자 6(대법원 및 항소심 판결의 원고 6) 조합원 주식회사 파로스 2006. 5. 8. 2007. 9. 13.

B. On September 21, 2007, the Plaintiff, etc. and the Appointed Labor Relations Commission filed an application for remedy against unfair dismissal and unfair labor practices by asserting that each of the dismissal of the instant case was unfair dismissal and unfair labor practices with the Incheon Regional Labor Relations Commission. On December 24, 2007, the Incheon Regional Labor Relations Commission dismissed each of the above applications with the Plaintiff, etc. and the Appointed Labor Relations Commission dismissed on December 24, 2007.

C. On January 30, 2008, the Plaintiff, etc. and the Appointed Labor Relations Commission filed an application for reexamination of unfair dismissal and unfair labor practice relief with the Central Labor Relations Commission as of January 8, 2008 and the National Labor Relations Commission dismissed all of the applications for reexamination of unfair dismissal and unfair labor practice relief with the Plaintiff, etc. on April 24, 2008 (hereinafter “instant reexamination decision”).

【Unsatisfy-based dispute on the ground of recognition】Nos. 9, 11, 1-1, 1-5, 2-5, 3-1, 7, 4-1, 10 each entry of Gap evidence Nos. 4-1, 10

2. Whether the decision on the retrial of this case is lawful

A. The plaintiff's assertion

The plaintiff asserts that, for the following reasons, each of the instant dismissal constitutes unfair dismissal and unfair labor practices, the review decision of this case as otherwise stated in the conclusion shall be unlawful and revoked.

1) Non-existence of grounds for dismissal

The tendency of lower-ranking employment of university graduates is a social phenomenon. The plaintiffs et al. do not misrepresent the academic background more than actual person but it is not necessary to clarify the fact that the plaintiff et al. graduated from university because they did not simply state the fact that the plaintiff et al. graduated from university at the time of employment. The participant companies et al. did not merely state the academic background at the time of employment of the plaintiff et al., but do not have any relation to the plaintiff et al.'s performance of duties at the time of employment. In fact, the academic background does not have any relation to the plaintiff et al.'s payment, personnel affairs, promotion, etc., and not any consideration for the decision of the plaintiff et al. at the time of employment. At present, the participant companies et al. were working for the plaintiff et al., with the exception of the plaintiff et al., the issue of false entry about the academic background. The plaintiff et al. had faithfully worked for the plaintiff et al. before the establishment of the branch of this case.

(ii) a defect in disciplinary proceedings;

Since the Intervenor Company et al. held a personnel committee without giving sufficient opportunity for explanation to the Plaintiff et al. and dismissed each of the instant dismissal against the Plaintiff et al., there is a significant procedural defect in each of the instant dismissal.

3) Existence of intention to engage in unfair labor practice

Unlike the grounds for dismissal in this case, the Intervenor Company et al. was suspected of engaging the Plaintiff et al. in the activities as executive officers of the branch of this case and dismissed the Plaintiff et al. as to disadvantageous treatment, control, and intervention. Thus, each of the dismissal in this case constitutes unfair labor practices.

(b) Fact of recognition;

1) The Plaintiff graduated from the Seoul National University Education Department (Seoul National University Education Department); the Selection 2; the Selection 3; the Selection 4; the Selection 5; the Selection 5; the Selection 6; and the Selection 6, respectively. During the period from September 1, 2003 to July 1, 2006, the Plaintiff et al. entered each production worker in the Intervenor Company, etc., and entered only the high school that he graduated from the curriculum, and did not enter the fact of university graduation.

2) Meanwhile, the Appointor 4 submitted to the company a letter stating that “if it is discovered that he/she was employed by unlawful means, he/she will accept any measure or punishment of the company.”

3) The Intervenor Company et al. worked for the Plaintiff et al. as the core part of the instant branch office established on September 2, 2007. Around that time, the Plaintiff et al. searched Internet search regarding the Plaintiff et al.’s career, and as a result, the Plaintiff et al. knew that he et al. were college graduates.

4) Accordingly, the Intervenor companies, etc. held each of the personnel committee during the period from September 10, 2007 to September 15, 2007, on the ground that “the Plaintiff, etc., who did not enter the university graduation in the resume at the time of entry constitutes grounds for dismissal as prescribed by the respective rules of employment,” and each of the instant dismissal against the Plaintiff, etc. was made between September 10, 2007 and September 17, 2007 pursuant to the resolution of each of the personnel committee as above.

5) Details of each provision regarding the dismissal of the Intervenor Company, etc. of the instant case are as follows.

【Rules of Employment of J. S. S. Company】

Article 8 (Qualification of Employees)

Any of the following persons shall not be employed as an employee, and shall be dismissed even after employed:

7. Persons employed by falsely preparing and employing careers, academic background, personal records, etc.

Article 9 (Documents to be Submitted at Employment)

1.Documents to be submitted at the time of employment shall be:

(3) 2 copies of a shotgraph (including photographs)

(4) A copy of the final academic background record;

2. Resumes shall be recorded in writing, and academic background and career experience of not less than one month shall be recorded in full.

Article 53 (Dismissal)

A company may take disciplinary measures against any of the following persons:

10. A person who belongs to, or conceals an academic background or a career under Article 9 (2) in his/her membership.

【Rules of Employment of Large Business Corporation】

Article 8 (Qualification of Employees)

Any of the following persons shall not be employed as an employee, and may be dismissed even after he/she is employed:

7. Persons employed by falsely preparing and employing careers, academic background, personal records, etc.

Article 9 (Documents to be Submitted at Employment)

1.Documents to be submitted at the time of employment shall be:

(3) A copy of a written records.

(5) A copy of a certificate of final school graduation;

(6) A copy of the last school life record.

2. Resumes shall be recorded in writing, and academic background and career experience of not less than one month shall be recorded in full.

Article 54 (Dismissal)

A company may take disciplinary measures against any of the following persons:

10. A person who belongs to, or conceals an academic background or a career under Article 9 (2) in his/her membership.

[주식회사 스텝포유의 취업규칙]

Article 6 (Submission of Documents)

Documents to be submitted at the time of employment are as follows:

1. One copy of a penology (a photograph attachment, academic background, and career experience of not less than one month shall be recorded in each and every time);

Article 68 (Dismissal)

The dismissal shall be made in any of the following cases:

12. Where it is judged that false entry of career, academic background, etc. has undermined the trust of labor-management or has become a member of the company for purposes other than labor;

Article 72 (Causes of Disciplinary Disposition)

Where an employee falls under any of the following subparagraphs, he/she shall be punished by disciplinary action:

18. A person employed in an unlawful manner through misrepresenting or hiding his/her name, date of birth, educational background or career, or by hiding or concealing it.

【Rules of Employment of Treatment-Based Stock Company】

Article 8 (Qualification of Employees)

Any of the following persons shall not be employed as an employee, and shall be dismissed even after employed:

7. Persons employed by falsely preparing and employing careers, academic background, personal records, etc.

Article 9 (Documents to be Submitted at Employment)

1) Documents to be submitted at the time of employment are:

3. A copy of a penology (including photographs).

5. A copy of a certificate of graduation from a final school.

6. A copy of the last school life record.

2) Resumes shall be recorded in writing, and academic background and experience for not less than one month must be recorded in full.

Article 54 (Dismissal)

A company may take disciplinary measures against any of the following persons:

10. A person who belongs to, or conceals an educational background or a career under Article 9 (2) at the time of his/her entry.

【Rules of Employment of SPad World Company】

Article 8 (Qualification of Employees)

Any of the following persons shall not be employed as an employee, and shall be dismissed even after employed:

7. Persons employed by falsely preparing and employing careers, academic background, personal records, etc.

Article 9 (Documents to be Submitted at Employment)

1.Documents to be submitted at the time of employment shall be:

(3) 2 copies of a shotgraph (including photographs)

(4) A copy of the final academic background record;

2. Resumes shall be recorded in writing, and academic background and career experience of not less than one month shall be recorded in full.

Article 53 (Dismissal)

A company may take disciplinary measures against any of the following persons:

10. A person who belongs to, or conceals an academic background or a career under Article 9 (2) in his/her membership.

【Rules of Employment of Pakistan】

Article 5 (Concurrent Punishment)

A person who is to be an employee shall submit documents designated by the company and undergo screening.

A. Documents to be submitted at the time of employment are as follows:

a. One copy of a self-written calendar (a)

f. A copy of a certificate of graduation from a final school.

B. The resumes shall, in principle, be written, and the facts should be clear, provided that documents are simplified, if necessary.

Article 9 (Qualifications of Employees)

Any of the following persons shall not be employed as an employee, and may be dismissed even after he/she is employed:

(e) A person who prepares false records of personal history, such as experience and academic background;

Article 50 (Dismissal)

A company may take disciplinary measures against any person falling under any of the following subparagraphs:

(J) A person who has an educational background and experience under Article 5 (a) in his/her membership, or who has become a hidden employee;

[Provisions of the Personnel Committee of Pakistan for Stock Companies]

6. Adoption and resolution of a meeting;

4) The chairperson shall give the person referred to the personnel committee an opportunity to make statements and defenses. If the person given an opportunity fails to attend a meeting, it shall be deemed that he/she has given up the opportunity to make statements and defense

【Unsatisfy-based dispute over the facts of Gap evidence 9, Gap evidence 10-1, Eul evidence 11-3, Eul evidence 1-6 through 9, Eul evidence 2-1, Eul evidence 2-3 through 6, Eul evidence 3-2, 3, 5 through 8, Eul evidence 4-2 through 7, 10, and 11, the testimony of the non-party witness, and the purport of whole pleadings

C. Determination

1) The part concerning the relief from unfair dismissal

A) Whether there is a ground for dismissal

(1) The reason why the company requires the resume or certificate stating the academic background or career while employing workers is not only to evaluate the worker's work ability, i.e., the worker's ability, but also to determine whether to hire workers through a prior personal judgment, such as the worker's intelligence and experience, educational degree, suspension from office and adaptation to work, etc. In order to maintain the trust and corporate order, it shall be deemed to be a reference material for the determination. The mere fact that false career experience is required to be submitted for this purpose is not only an important negative factor about the worker's suspension from duty, but also a prior personal judgment against the worker who the company intends to employ. Thus, the rules of employment, etc. that provide for the reason that the act of false entry or concealment of the career or the act of concealment of the worker's career at the time of employment should be subject to disciplinary action is valid, unless there are special circumstances such as the employer's mistake or it is extremely unreasonable under the generally accepted social norms to regard the worker's contents as a ground for disciplinary action (see, e.g., Supreme Court Decision 298Du7264.).

(2) Regarding the instant case, it is difficult to view that: (a) the following circumstances are revealed that the Plaintiff et al. did not enter the university graduation at the time of university graduation, i.e., ① the Plaintiff et al., the mere fact that the university graduation was not an important negative element for the suspension from office of the Plaintiff et al.; (b) the rules of employment of the Intervenor et al. stipulate that the Plaintiff et al. were dismissed as a ground for false entry of the career or academic background; (c) it is difficult to view that the aforementioned false entry of the Plaintiff et al. in the academic background was merely an error or extremely minor; (d) it is difficult to recognize that the Plaintiff et al. did not have any other legitimate evidence to acknowledge that the Plaintiff et al. was a graduate of the university since the Plaintiff et al. did not want to receive discriminatory treatment on the ground of his right to work and social status; and (iv) the Intervenor et al. did not have any other evidence to acknowledge that the Plaintiff et al. was a graduate of the university since early 207.

(3) Therefore, this part of the Plaintiff’s assertion is without merit.

B) Whether there is a defect in the disciplinary procedure

(1) If there is no procedural provision such as granting a person subject to disciplinary action an opportunity to vindicate at the time of disciplinary action, etc., the disciplinary action shall not be deemed null and void even if it did not go through such procedures (see Supreme Court Decision 97Nu14132 delivered on November 27, 1998, etc.).

(2) As to the instant case, there is no procedural provision that allows a person subject to disciplinary action to give a person subject to disciplinary action, such as ① the rules of employment of the participating companies, etc., other than Pakistan, to give a person subject to disciplinary action an opportunity to vindicate. ② Nevertheless, the remaining participating companies except Pakistan did not have sufficient period of time but notified the Plaintiff et al. (excluding 6) of the fact that some of the Plaintiff et al. including the Plaintiff et al. appeared before the personnel committee without giving giving an opportunity to vindicate given. ③ The Plaintiff et al. did not provide sufficient opportunity to explain that the Plaintiff et al. appeared in the personnel committee without giving an opportunity to explain. ③ The Plaintiff did not provide sufficient opportunity to give an opportunity to explain to the person subject to disciplinary action but did not provide sufficient opportunity to explain to the person subject to disciplinary action.

(3) Therefore, other Plaintiff’s assertion on this part is without merit.

C) Sub-decision

Therefore, it cannot be said that there is no error of law as alleged by the plaintiff in the part concerning unfair dismissal relief among the decision made by the reexamination of this case as to this conclusion.

2) The part on remedy for unfair labor practice

A) Whether an employer’s act constitutes an unfair labor practice under the Trade Union and Labor Relations Adjustment Act shall be comprehensively examined and determined by comprehensively examining all the circumstances to presume the existence of an employer’s intent to engage in unfair labor practice. Since the burden of proof of unfair labor practice lies in an employee or a trade union asserting it, if it is unclear whether an employer intended to engage in unfair labor practice exists and it is impossible to determine its existence, the resulting risk or disadvantage shall be borne by the employee or the trade union asserting it. In this regard, even though an employer took unfavorable measures, such as disciplinary action, dismissal, etc. against a worker, but as a result of deliberation, it is found that there was a justifiable reason to take such measures, it cannot be readily concluded that the employer’s unfavorable measure was taken against the intent to engage in unfair labor practice (see, e.g., Supreme Court Decision 2005Du4120, Nov. 15, 2007).

B) As seen earlier, the Intervenor Company’s dismissal of the Plaintiff et al. for the following reasons: (a) evidence Nos. 5 through 7, A’s evidence No. 12-1, 2, A’s evidence No. 13-1 through 3, A’s evidence No. 14-2, A’s evidence No. 17-1 through 4, A’s evidence No. 18-1 through 23, A’s evidence No. 19-20, A’s evidence No. 21-1, 22, A’s evidence No. 23, A’s evidence No. 25, A’s evidence No. 26-1 through 5, A’s evidence No. 27, A’s evidence No. 28-1 through 5, A’s evidence No. 29, and each part of the Plaintiff’s motion No. 3, etc. for dismissal, is not sufficient to acknowledge otherwise.

C) Therefore, the part concerning remedy for unfair labor practice among the judgment rendered by the reexamination of this case cannot be said to have been erroneous as otherwise alleged by the Plaintiff.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment List of Appointed]

Judges Lee Dong-gu (Presiding Judge)