209Guhap16787 Revocation of the Re-help Trial Tribunal for Unfair Dismissal

○○ Co., Ltd.

The Chairman of the National Labor Relations Commission

00

October 8, 2009

November 5, 2009

1. On March 18, 2009, the National Labor Relations Commission’s revocation of the part concerning suspension from office in the review decision rendered between the Plaintiff and the Defendant joining the Defendant with respect to the application for review of unfair suspension from office and unfair suspension from office in 2009, 2009 and the application for remedy for unfair labor practice.

2. Of the costs of lawsuit, the part resulting from the participation in the costs of lawsuit is borne by the Intervenor joining the Defendant, and the remainder by the Defendant.

The order is as set forth in the text.

1. Details of the decision made by the retrial;

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

A person shall be appointed.

A. The parties’ assertion

(1) Plaintiff 1,

Since the amended collective agreement includes an agreement that excludes the application of favorable conditions under the rules of employment and preferentially applies to the amended collective agreement, it is reasonable to punish an intervenor by selecting suspension from office as a kind of disciplinary action under the collective agreement.

(2) The defendant and the intervenor

① The facts of suspicion of disciplinary action against the intervenor cannot be deemed grounds for disciplinary action since the plaintiff was involved in the process of preventing the intervenor's legitimate union activities by force. ② The suspension disposition in this case is unlawful as it applies the provisions of the rules of employment which are not under the collective agreement to the disciplinary procedure and the kind of disciplinary action. ③ The disciplinary committee held by the plaintiff in the process of demanding a disciplinary action against the intervenor even though it is possible to make a resolution with the consent of at least 2/3 of the committee members, there were only three of the five of the committee members present in the process of demanding a disciplinary action against the intervenor, and ④ The intervenor requested a review to the disciplinary committee on the portion of the suspension disposition in this case, and ④ The plaintiff requested a review of the disciplinary committee on the grounds of the collective agreement.

In addition, there is an error of excessive deviation and abuse of discretionary power.

(b) Facts of recognition;

(1) On November 23, 2007, the Plaintiff concluded a collective agreement with the ○○○ Branch of ○○ Labor Union (hereinafter “instant trade union”) affiliated with the Intervenor, following collective bargaining.

(2) Rules of employment (Enforcement July 1, 2005) of the Plaintiff Company related to the suspension from office of this case and the main contents of the collective agreement are as follows.

▣ 취업규칙

Article 15. Workplace Rules

An employee shall be on duty in compliance with the following matters at all times:

8) They shall not smoke outside a designated place.

Article 24 Prohibited Act

No employee shall engage in any of the following acts:

1) a violation of the provisions of paragraph (1) or failure to comply with an order of practice;

6) the destruction or loss of a company’s constructed goods, installations, materials or machinery, apparatus or other goods by taking care of them.

10) assault, intimidation, or interference with its business to persons or other employees of the Company;

Article 59 Composition

The personnel committee shall be comprised of not more than five members appointed by the representative, and one vice-chairperson and one executive secretary shall be appointed by the chairperson.

There shall be a person.

Article 60 Quorum

2) The Committee shall adopt resolutions with the concurrent vote of two-thirds or more of the members.

Article 64 Types of Disciplinary Action

Discipline shall be classified into the following five categories:

(i) reprimand, reduction in salary (ii) salary, suspension in salary (iii) or suspension in salary;

4) The suspension of attendance at work: The suspension of attendance at work within the limit of 15 days after receiving the last day, and the suspension of attendance at work does not pay wages within that period.

shall obtain approval from the head of the competent local labor office.

(v) dismissal;

Article 65. Reprimand

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

5) If the failure to commit an act causes disturbance to public morals or order in the Company.

Article 67 Disciplinary Dismissals

Where an employee falls under any of the following subparagraphs, the disciplinary dismissal shall be made: Provided, That where an employee falls under any of the following subparagraphs, he/she shall be suspended

There is an end in the reduction of salary.

15) When he interferes with another person’s business by committing violence, intimidation, or instigates another person to do so.

20) The reprimand disposition is not less than four times or twice or more, and the reprimand disposition is taken twice or more, and a reduction in salary, a suspension of a elevation in salary, or a suspension of a elevation in salary, twice or more.

If it is recognized that there is no wish to open even after receiving it;

▣ 단체협약

Article 12 (Grounds for Disciplinary Action)

(1) A company shall take disciplinary action against its members in the following cases:

1. When he/she is absent from work without permission for at least three consecutive days without justifiable grounds;

2. Where he inflicts enormous financial loss on the company by intention or negligence;

Article 13 (Categories of Disciplinary Action)

(1) Warning, ② reprimand, ③ salary reduction.

(4) Suspension: Not more than 30 days per time.

5. Dismissal,

Article 14 (Composition of Disciplinary Committee)

(1) The Disciplinary Committee shall be comprised of one president and five and six members commissioned by the company, and a decision shall be made with the attendance of a majority and with the consent of a majority present: Provided, That where the company intends to take disciplinary action against dismissal of ten persons for the activities of the union with respect to the chairperson, the partial president, the head of the affairs, the head of the organization, the head of the sports division, the head of the teachers’ association and the representatives

required by this section.

Article 15 (Procedure of Disciplinary) Disciplinary proceedings on members shall be as follows:

(1) When intending to take disciplinary action against a member, the disciplinary committee shall be held without fail, personal information of the member, grounds for disciplinary action, and

The date and place of the personnel committee shall be specified, and shall be notified in writing to the disciplinary committee members and the relevant person seven days prior to the meeting of the disciplinary committee.

(2) The Disciplinary Committee shall hold a meeting within 15 days from the date on which a request for deliberation or resolution on disciplinary action is made, and the relevant member.

The Disciplinary Committee shall provide an opportunity for explanation to the relevant member. If a member applies for a witness for reasonable grounds, the Disciplinary Committee shall accept such application.

(3) The Disciplinary Committee shall notify the union and its members of the result of disciplinary resolution in writing within seven days.

(4) A person who is subject to disciplinary action may request a review within seven days from the date on which the decision on disciplinary action is notified, and when a request for review is made, the disciplinary committee shall conduct a review and notify the result thereof within seven days from the date of receipt of the request for review.

The notification of the result of reexamination may be extended within the limit of one day.

(3) On March 14, 2008, the instant trade union submitted to the Plaintiff a proposal for wage negotiations in 2008 between the Plaintiff and the Plaintiff on June 4, 2008 and June 18, 2008, but did not reach an agreement.

(4) On June 20, 2008, the instant trade union filed an application for mediation with ○○ Regional Labor Relations Commission on June 20, 2008, and conducted a pro-con voting for industrial action from June 24, 2008 to June 26, 2008, and on June 30, 2008, the said Labor Relations Commission carried out a pro-con voting for union members to industrial action. On June 30, 2008, the said Labor Relations Commission decided to suspend mediation and operated a pro-con and full-scale strike intermittently from July 2008.

(5) On August 8, 2008, the instant trade union entered a factory with a ampample in order to hold an assembly, and prevented the Plaintiff’s employees and security guards from bringing the Plaintiff’s management office into a factory. During this process, the Intervenor was at the time of her ○○○○ team’s clock, carried out security guards and body fighting, and said ○○○○○○○○○○○○○○○○○○○○○ team called “the Plaintiff’s ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○”). The instant trade union, in the process of seeking to enter the factory on August 11, 2008, the Intervenor took part in the ○○○○’s body and the body while flying the gamer.

(6) On September 16, 2008, the intervenor was smoking while leaving the workplace even during the working hours of about 10: 10.

(7) On September 10, 2008, the Plaintiff notified the Intervenor that he would attend the Disciplinary Committee (temporary: September 18, 2008: 00) on the grounds of the following disciplinary reasons.

* Disciplinary Reason: Violation of Rules of Employment

(1) Members’ violence, abusive language, abusive language, abusive language, or use of force;

(2) The personal attack of such members (influence of will)

(3) Failure to comply with business instructions

(4) Damage to company equipment (any intentional damage to Kameras)

(8) In accordance with a collective agreement, in a disciplinary committee composed of one chief of the division of the instant trade union (○○○) and five and six members commissioned by the company, the members attended the meeting on September 18, 2008 and determined that the act of assault, insult, damage, and escape from the workplace of the intervenor constitutes Article 24(1), (6), (10), 65(5), 67(15), and (20) of the Rules of Employment, and decided on 30 days of suspension from office to the effect that the intervenor filed a request for reexamination with the Disciplinary Committee on September 25, 2008. The Plaintiff rejected the Intervenor’s request for reexamination on October 15, 2008.

(9) Meanwhile, on June 2, 2008, the intervenor was subject to a disposition of suspension from office on June 17, 2008 by the plaintiff on June 17, 2008, on the grounds that the intervenor viewed TV with DMB cellphones around 50 minutes and that the intervenor made verbal speech to the general team employees.

[Ground of recognition] The facts without dispute, Gap 2-35 evidence, Eul 1, 2, 4, and 5 evidence (including each number), each of the statements or images, and the purport of the whole pleadings

C. Determination

(1) Whether the grounds for disciplinary action exist and the choice of disciplinary action is justifiable

(A) As seen earlier, the Intervenor’s act constitutes grounds for disciplinary action provided by Articles 24(1), (6), (10), 65(5), and 67(15) of the Rules of Employment. The Intervenor’s act constitutes grounds for disciplinary action provided by Articles 24(1), (6), (10), 65(5), and 67(15) of the Rules of Employment. The Intervenor’s act constitutes a cause for disciplinary action, which is caused by a failure to perform his/her duties, by assaulting his/her employees and security guards and insulting his/her employees; ② assaulting his/her superior on August 11, 2008 and destroying the company’s goods (Kamerra).

Even if there is an act, the nature of the cause for disciplinary action cannot be denied solely on the basis of such act.

(B) Furthermore, we examine whether the Plaintiff’s disciplinary action against the Intervenor was legitimate for 30 days of suspension due to the grounds for disciplinary action under the above rules of employment.

Under the principle of collective agreement autonomy, a trade union may enter into a collective agreement with an employer to change terms and conditions of employment in favor of an employer as well as a collective agreement to change terms and conditions of employment unfavorably. Thus, barring any special circumstance, such as where the collective agreement to change terms and conditions of employment may be seen as going beyond the purpose of the trade union due to a substantial rationality, such agreement cannot be deemed null and void. Notwithstanding the amendment of the collective agreement, if the rules of employment of the same content as the previous collective agreement are applied as it is, the amendment of the collective agreement cannot achieve its purpose, and therefore, the amended collective agreement is consistent with the intent of the parties to the agreement to deem that the amended collective agreement includes an agreement to exclude the application of favorable conditions under the rules of employment and to preferentially apply the amended collective agreement (see Supreme Court Decision 2002Du9063, Dec. 27, 2002).

In light of the above legal principles, the Plaintiff Company’s rules of employment and the collective agreement do not conflict with the rules of employment and the grounds for disciplinary action and type under the collective agreement, and there was a separate agreement between the Plaintiff and the Plaintiff to exclude the grounds for disciplinary action and type under the rules of employment as to physical defects in the collective agreement. As long as it is difficult to view the grounds for disciplinary action as limited to the collective agreement, it shall not be deemed that the grounds for disciplinary action against workers are set forth in Article 12 of the collective agreement, but it shall be deemed that the ground for disciplinary action under the rules of employment and other grounds for disciplinary action than the grounds for disciplinary action under the rules of employment may be set forth in the rules of employment, and it shall be reasonable to view that it may be possible to select 30 days suspension from office among the types of disciplinary action under the collective agreement and to take disciplinary action against the Intervenor. (As seen earlier, as long as the existence of grounds for disciplinary action falling under dismissal is recognized, the lower punishment cannot be deemed to violate the Plaintiff Company’s collective agreement and regulations on business operation.

(2) Whether the disciplinary procedure is justified or not

(A) However, with respect to the disciplinary procedures such as the method of the formation of the disciplinary committee and the quorum, the rules of employment and collective agreement cannot be applied alternatively and alternatively, and there is no special circumstance that the contents of the collective agreement can be seen as going beyond the purpose of the trade union by significantly lacks rationality, and the plaintiff has been subject to disciplinary action following the conclusion of the collective agreement, and it seems that there is no objection from the trade union or workers. In full view of the fact that the head of the trade union division (OO) of this case which participated by the intervenor who participated in the disciplinary committee or the members of the disciplinary committee prior to the institution of the lawsuit in this case did not raise any objection against the disciplinary procedures in this case under the collective agreement, it is legitimate to conduct the instant disposition with the attendance of a majority of all members of the disciplinary committee organized pursuant to the collective agreement, and with the consent of a majority of those members, suspension from office against the intervenor.

(B) In addition, it is reasonable to view that the new disciplinary committee was held more than 7 days after the date of the request for review, and that there is a procedural defect as argued by the Intervenor, in light of the fact that the new disciplinary committee did not raise any objection against the fact that the new disciplinary committee was held later than 7 days after the date of the request for review, and that the new disciplinary committee consented to the holding of the new disciplinary committee as to the holding of the new disciplinary committee, such as ○○ et al., the president of the union of this case. The intervenor was given an opportunity to attend the new disciplinary committee and explain his position (see evidence 20, 21). The intervenor and the above ○○○ did not raise any objection against the fact that the new disciplinary committee was held later than 7 days after the date of the request for review. Accordingly, it is difficult to deem that there was procedural defect as alleged by the intervenor.

(3) Whether a disciplinary action is reasonable

In light of the fact that the Intervenor had been subject to seven days of suspension from office due to the fact that the Intervenor had been subject to the suspension from office for three months prior to the instant disciplinary cause similar to the instant disciplinary cause, and that the details and degree of the disciplinary cause against the Intervenor cannot be deemed to be less than that of the Intervenor, it is difficult to deem that the instant suspension from office is too excessive to the Intervenor, and thus, the Intervenor has exceeded and abused its discretion.

(3) Sub-decisions

Therefore, the disposition of suspension from office of this case is just, and the decision of retrial of this case which differs from this conclusion is the above law.

3. Conclusion

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

Judges OOOO

Judges ○○○

Judges ○○○