208Guhap37817 Revocation of the Appeal Tribunal on Unfair Dismissal

○○ Co., Ltd.

The Chairperson of the National Labor Relations Commission

1. ○○○

2. ○○○

March 10, 2009

March 24, 2009

1. The plaintiff's claim is dismissed.

2. The costs of the lawsuit, including the part resulting from the participation, shall be borne by the Plaintiff.

The National Labor Relations Commission on August 21, 2008 between the Plaintiff and the Intervenor (hereinafter referred to as the “ Intervenor”)

The decision made by a new trial on an application case for a new trial on unfair dismissal ○○○○○○○ 2008 shall be revoked.

1. Details of the disposition;

The following facts may be acknowledged as either in dispute between the parties or in full view of the descriptions in Gap evidence 1 and 2 and the whole purport of the pleadings:

A. The Plaintiff is a company that employs 30 full-time workers and engages in newspaper utilization franchise education business, general book publishing business, electronic commerce business, etc. The Intervenor ○○○○ was employed on November 8, 2007, and the participant ○○○○ was employed as the career leader of each Plaintiff company’s newspaper content team on December 3, 2008. The Plaintiff company notified the Intervenor that the recruitment of the Intervenor was cancelled on March 4, 2008 and February 29 of the same year on the premise that the Intervenor entered into a contract with the Intervenor on March 4, 2008.

B. On March 26, 2008, the intervenors asserted that the cancellation of the appointment of the Plaintiff Company by the Seoul Regional Labor Relations Commission 2008 Section 2008 Section ○○○○○ was unfair dismissal, and filed an application for unfair dismissal. The Seoul Regional Labor Relations Commission dismissed the Intervenor’s application for remedy on May 19, 2008.

C. Accordingly, on June 19, 2008, the intervenors filed an application for reexamination with the National Labor Relations Commission on 2008 (hereinafter referred to as the “National Labor Relations Commission”) and on August 21, 2008, the National Labor Relations Commission dismissed the intervenors by deeming that the Intervenor was employed as a regular meal employee who is not a trial employee, and thus, notified the Intervenor of the cancellation of employment as to the Intervenor. However, on the ground that the grounds for dismissal alleged by the Plaintiff Company cannot be deemed as a cause for non-existence of an employment relationship under the generally accepted social norms, the dismissal would be unfair on the ground that the determination was excessive, and the first court was revoked and the application for remedy was accepted, and the Plaintiff Company ordered the Intervenor to return the Intervenor to the original position within 30 days from the date of service of the written determination and to pay the amount equivalent to the wages that could have been received if the Intervenor had worked during the period of dismissal (hereinafter referred to as the “instant decision on reexamination”).

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

A. The plaintiff's assertion

Article 7 (1) of the Rules on the Employment of the Plaintiff provides that "if an employee is newly appointed, a three-month probation period shall be placed." Thus, it is exceptionally used not to distinguish the probation (the Plaintiff does not distinguish the probationary period from the probationary period in order to determine whether or not the probationary period is regularly employed by evaluating the work ability, etc. before the probationary period is regularly employed. In this case, it is not necessary to distinguish the probationary period from the probationary period. In addition, there is no agreement between the Intervenor and the Intervenor. The Plaintiff Company notified the Intervenor that there was three-month probationary period and evaluation of the probationary period. In light of the fact that the Intervenor signed a written pledge including the probationary period and the content of the probationary period, and that there was an agreement between the Intervenor and the Intervenor regarding the probationary period and the guidelines on the probationary period, and that there was sufficient evidence between the Intervenor and the Intervenor.

In addition, it is recognized that the plaintiff company's refusal to enter into this contract with the participant whose probation period has expired in light of the reasons such as the participant's failure to participate in the contract and the lack of ability to prepare the article, the deletion of the news article, the refusal of the extension of probation period, the renunciation of the workplace and the absence of planning meetings, and the omission of this record (the participant ○○○).

Even if not, the above reasons are sufficient for the Intervenor to be dismissed.

Therefore, even though the rejection of the above employment by the plaintiffs company against the intervenors of the plaintiff company is justified, the decision of the retrial of this case is unlawful.

(b) the relevant regulations;

[Rules of Employment]

Article 6 (Documents to be Submitted) Any person employed as an employee of a company shall submit the following documents:

3. A written oath.

Article 7 (Period of Probation) (1) Where a new employee is appointed, the period of probation shall be three months: Provided, That where he/she is appointed through a career screening or has gone through a special screening procedure, the period of probation need not be set.

(2) Employment shall be taken, if a person still in training period is deemed to have poor performance or poor quality.

may file a suit.

Article 8 (Dismissal)

A company shall dismiss an employee if he falls under any of the following subparagraphs:

10. Where a serious defect, such as a false description, is discovered after entry;

11. When subject to disciplinary action under the disciplinary regulations;

Article 36 (Disciplinary Action) Any company may take disciplinary action against its employees in any of the following cases:

1. When it has violated an bylaws or a company’s order on business;

2. When he violates his duties or neglects his duties;

3. When he has caused property damage to the company by intention or gross negligence.

4. Where the cause of an accident has been created due to a significant neglect of duties;

Article 37 (Categories of Disciplinary Action)

1. “Release” means the dismissal of a person who is deprived of his personal belongings;

Article 38 (Procedure of Disciplinary Action) Where a company intends to take disciplinary action on grounds of disciplinary action, the following procedures shall apply:

(1) Disciplinary action against a company shall be taken after deliberation by the Committee on Personnel Management (Reward and Punishment).

(2) The personnel committee shall give an opportunity to provide an explanation to a person subject to the personnel management committee, and approve the application for a witness at the request of the witness.

of this section.

Article 39 (Reward and Punishment Deliberation Committee) The disciplinary action against an employee shall be determined by the representative director after deliberation by the personnel committee (Reward and Punishment Deliberation Committee). The composition and operation of the personnel committee shall be separately determined.

(c) Facts of recognition;

The following facts may be acknowledged in full view of each of the above evidence, evidence Nos. 3, evidence Nos. 4 through 8-1, 2, evidence No. 18-1, 2, 3, evidence No. 19, evidence No. 1-1, 2, evidence No. 6 through 15, evidence No. 1-2, witnessO, witnessO, and the purport of each of the testimony and arguments of OO:

(1) The intervenors reported the employment announcement of the Plaintiff Company (not less than three years of news gathering experience in daily newspapers) published on the ○○ daily newspaper, etc., and applied for the employment announcement (not including the content of the probation period in the employment announcement), and passed the first document screening and the second interview screening, and entered the Plaintiff Company as a person of career in charge of education for the ○○ daily newspaper on November 8, 2007, respectively.

(2) At the time of entry, the intervenors entered into the annual salary contract with the term of contract between each member and December 31, 2007. At the time of entry, the intervenors entered the National Content Headquarters's representative belonging to each content development headquarters / reporters (in ○○○, a participant) and the class of senior / reporters (in a position, ○○○○, a participant). The participants entered the annual salary contract with the term of contract between December 31, 2007. The intervenors received education, such as introduction from the head of each team through the OJT process on November 9, 2007 and December 3 of the same year.

(3) On November 14, 2007, immediately after each entry under the policy for the integration of personnel documents for the head office of ○○ Daily and each affiliate company, the intervenors signed and submitted to the Plaintiff Company a written pledge containing the content of "I will comply with the cancellation of employment in consideration of their practical situation and the quality during the probation period," and submitted it to the Plaintiff Company. Since April 2007, all members signed the written pledge in the same form and submitted it to the Plaintiff Company.

(4) On February 12, 2008, the team leader of the Plaintiff’s ○○○○○○○○○○○○○○○○ was assessed by the head of the OO and the participant’s ○○○○○○○○○○○○○○○○○○○○○○, who was employed with the head of the OO and the participant’s ○○○○○○○○○○), proposed the extension of the training period by March 31 of the same year, as the result of an evaluation of the performance of duties to the Intervenor○○○○○○○○○○○○○○○ on the ground that the training period was 79 points after the extension.

(5) The intervenors demanded that the Intervenor make a preparation on February 12, 2008, " formally by the ○○○○○○○○’s leader," "Attention with signature and signature," and the newspaper content team," respectively, the date for preparation is retroactive to each entry day. The Intervenor ○○○ was from November 8, 2007 to the date for commencement.

By March 31, 2008, the intervenor ○○○ shall be from December 3, 2007 to March 2, 2008, and from March 2, 2008, where it is deemed disqualified as an employee due to non-submission of service records, attitudes, ability, aptitude, health conditions and necessary documents during the period of use, false entry, etc., the principal appointment shall be revoked, and the period of trial use shall be revoked.

After the expiration of employment, a written contract for probationary employment was prepared to conclude a separate employment contract and submitted to the plaintiff company.

(6) On February 29, 2008, the head of the ○○ Content Development Headquarters: (a) around 00, the Intervenor’s ability to prepare an article falls short of the employment standard; (b) around 21:50 on the same day, the Intervenor’s job evaluation scores are deemed to fall short of the employment standard; (c) the Intervenor’s job performance evaluation scores will be cancelled as a person on the same day, but at around 21:50 on the same day, he will be extended the employment period to other departments; and (d) the Intervenor and the Intervenor expressed their opinions by March 3, 2008. Accordingly, the Intervenor and the Intervenor expressed their opinions on the same reporter’s OO and OOO (hereinafter “the Intervenor”) as a personnel declaration on unfair measures against the Intervenor on February 29, 2008, and expressed that “the Intervenor’s work files are prepared and kept by the engineer on the high seas site.”

(7) On March 2, 2008, the intervenors et al. found in the office of the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ calls for a reprimand, such as the withdrawal of personnel measures against the Intervenor’s OO, and an undertaking to prevent the recurrence of future unreasonable personnel measures. On the other hand, the ○○○○○○○○○○○○○○○○○○, et al. demanded one of the following days to have worked normally

(8) On March 3, 2008, the intervenors et al. worked normally on the morning, and finished up articles on the A.M. and finished up on the P.M. printing after editing work on the P.M., production of the ground, such as ○○○, etc., to be published on a regular basis. The ○○○○○ representative director from around 17:00 on the same day, interviewed one person in relation to the matters required before the intervenors et al. in turn.

(9) On March 4, 2008, the Plaintiff Company held a meeting related to the measures to deal with the intervenors, and the ○○○○, the participants of which were extended by one month, until the 31st of the same month. The Intervenor ○○○, the Intervenor ○, extended by two months and decided whether to conclude this contract by evaluating each performance of his duties until April 30, 2008. The ○○○○○○○○, the head of the team, on the same day, notified the Intervenor 14:0 on the same day.

(10) On March 4, 2008, the head of the ○○○○ team notified the intervenors, etc. to attend the 15:00 conference on the same day, but the intervenors, etc. did not attend the conference. On the same day, the Plaintiff Company determined that it was a collective action that resulted from the rash on the postponement of the conclusion of this contract, and notified the intervenors, through the e-mail with the following contents, of the cancellation of employment as of March 4, 2008. The intervenors asserted that the employment cannot be accepted, and they worked normally until March 21, 2008.

○ Intervenor ○○○

- He conducted a serious fraudulent act of deleting 5 articles worked by reporters on February 29, 2008 (the place where articles are stored in an e-mail) on a daily basis, every week, and ○○○○○○○○○○○○○’s major sales causes of us during the period of time labor contract, and she conducted a serious fraudulent act of eliminating 5 articles worked by reporters on a daily basis (the place where articles are stored in an e-mail file). In addition, on March 4, 2008, the head of ○○○○○○○○○ in a department of return to 3:0 p.m., on March 4, 2008, theme of the planning meeting without any justifiable reason, but sent a communication and Sms to attend a meeting on several occasions without any reason at March 4, 200. This act does not constitute an act during the period of time, and thus, it is disqualified as an employee for 30th of March and 40th of March.

○ Intervenor ○○○

- As of February 29, 2008, you will be informed once again that the employment was canceled with us, and as of February 29, 2008, you will be informed once again that the employment relationship with us was canceled to us by giving you an opportunity to work at the other department by extending the time-work contract by three months more at the same time in consideration of the company, and by March 3, 2008 ( February 29, 2008) but no opinion was given as of March 4, 2008.

(11) On the other hand, on March 5, 2008, the Plaintiff Company took a disciplinary measure against the Plaintiff Company for six months of reduction of salary and three months of reduction of salary as a ground for disciplinary action, such as deletion of news articles and absence of ground meetings with respect to ○○○ and ○○○○ upon deliberation by the personnel committee, etc.

D. Determination

(1) Whether the contract relationship is established

If the application of the trial period to new employees under the rules of employment is defined as selective items, it shall be specified in the employment contract whether the trial period is applied to the relevant worker, and if it is not specified that the contract of employment is applied, it shall be deemed that the worker was employed as a regular employee, not a temporary employee (see Supreme Court Decisions 90Da4914 delivered on November 26, 1991, 9Da30473 delivered on November 12, 199, etc.).

Article 7(1) of the Rules of Employment of the Plaintiff provides that when a new employee is appointed, a period of probation may not be given in cases where a new employee is appointed through a career screening or a special screening procedure is completed. Thus, even if a new employee is employed in accordance with the Rules of Employment, a period of probation may not be given in cases where a new employee is appointed through a career screening. Thus, as long as it does not provide that a period of probation should undergo a period of probation without exception for all new employees, in cases of a career employee or a specially employed employee, the application of probation period shall be decided according to an exceptional agreement. As can be seen, there is no clear agreement on the "exemption from probation period" in order not to apply the probation period to a newly employed employee as alleged by the Plaintiff.

In addition, the aforementioned facts and evidence Nos. 11 and 15 were acknowledged by the overall purport of oral argument. In other words, the Plaintiff’s employment notice does not include all the matters concerning the probationary period (for example, the probationary period). In the event of entering into a probationary contract prior to this contract, only an annual salary contract which is generally prepared with the Intervenor, even though it is general that the contract would include the essential elements of the contract at the time of entry. Although it is acknowledged that the Intervenor prepared a written pledge including an original contents to the extent that the appointment may be revoked during the probationary period of one week, the above written pledge is deemed as one of the documents to be submitted by the Intervenor (Article 6). In light of the above facts, the Plaintiff’s employment notice was also written in the same form as the 20th probationary period, regardless of the existence or absence of probationary period, and the Plaintiff’s new employment notice was also written in the same form as the 10th probationary period as the 20th probationary period.

On the other hand, the intervenors prepared a probationary employment contract retroactively to the date on which 2-3 months have passed since the date of entry. However, as seen earlier, the above probationary employment contract was prepared by the Plaintiff Company’s head of the management support team to the Intervenor ○○○○○○○○○○, but the period of probationary employment cannot be acknowledged on the ground that the Intervenor entered the career from the Intervenor ○○○○○○○○○○○○○, upon receiving a claim from the Intervenor that the period of probationary employment could not be recognized on the ground that the Intervenor entered the career from the part of the Intervenor. In light of the reasons for the preparation, it cannot be deemed that the Intervenor voluntarily recognized that the participation was a probationary employment contract from the initial employment process and prepared

Therefore, the plaintiff company cannot be deemed to have employed the intervenors as a temporary worker, and the plaintiff company should have employed the intervenors as a regular worker. Thus, if the cancellation of employment for the intervenors of the plaintiff company is intended to be valid, there should be "reasonable reasons" under Article 23 (1) of the Labor Standards Act, i.e., the reason responsible for the worker to the extent that the employment contract cannot be continued by social norms."

(2) Whether dismissal is justified or not

As long as the intervenors cannot be seen as a trial worker, the reason for dismissal is that the job evaluation score based on the premise that they are during the trial period falls short of 80 points, which are the standard points. However, the participant's act of collectively participating in the meeting held on February 29, 2008 is not a ground for dismissal under Article 36 subparagraph 1 and 2 of the Rules of Employment (which does not fall under the ground for dismissal under each subparagraph of Article 8 of the Rules of Employment). The participant's act of not participating in the meeting on February 29, 2008 constitutes a ground for dismissal under Article 36 subparagraph 1 and 2 of the Rules of Employment, which means that the participant's act of not participating in the meeting on February 29, 2008 constitutes a ground for dismissal under the whole purport of each evidence and arguments as mentioned above, and that the participant's act of not participating in the meeting on March 4, 2008 is not a considerable amount of damage to the plaintiff's company's participation in the work.

In light of the motive, damage size, equity of disciplinary action, etc. of the Intervenor who was subject to the most severe disciplinary measure of reduction of salary, the Plaintiff Company’s dismissal of the Intervenor cannot be deemed difficult to continue the employment relationship by social norms only based on the above disciplinary measure, and thus, its substantive legitimacy is not recognized as it deviates from and abused discretion, and it is conducted without deliberation by the personnel committee in accordance with the rules of employment of the Plaintiff Company. In addition, the Intervenor’s dismissal of the Intervenor was made without deliberation by the personnel committee in accordance with the rules of employment of the Plaintiff Company.

On the other hand, false statement of the resume, which is the ground for revoking the employment of the intervenor ○○○, asserted by the plaintiff, may constitute a ground for ordinary dismissal under Article 8 of the Rules of Employment. However, since the plaintiff company did not consider it as the ground for revocation at the time of notifying the cancellation of employment, it is difficult to determine the legitimacy of dismissal with the ground for dismissal against the plaintiff ○○, who is a witness of the above ground in the argument in this case.

Therefore, the revocation of employment by the Intervenor of the Plaintiff Company cannot be deemed to have justifiable grounds, and thus, the instant decision to the same effect is lawful.

3. Conclusion

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

Judges in fixed form of judge

Judges E.S.

High-ranking Judge No. Do;