(영문) 서울고등법원 2019.2.15. 선고 2018나2034962 판결

B. The Defendant shall pay to the Plaintiff money calculated at the rate of KRW 5,416,66 per month from August 4, 2017 to the time the Plaintiff’s reinstatement is reinstated.

2. All costs of the lawsuit shall be borne by the defendant.

3. The part concerning the payment of money under paragraph (1) may be provisionally executed.

Purport of claim and appeal

The order is as follows (the defendant does not have any order to change the job to the plaintiff as of July 31, 2017 against the plaintiff, and the plaintiff has withdrawn the part of the claim for confirmation of invalidity of the change to the job to the original court as of July 31, 2017).

Reasons

1. Basic facts

A. The Defendant is a corporation with the purpose of producing and selling game programs. On July 28, 2014, the Plaintiff was employed by the Defendant and served as the head of the Ab Team team (Abex) from the beginning of 2015.

B. On July 28, 2017, the Plaintiff demanded a meeting with C, the representative director of the Defendant, to improve the treatment of directors, such as promotion of directors and annual salary increases. Accordingly, C is difficult to promote the Plaintiff. In the event that C does not accept the Plaintiff’s demand under the Plaintiff’s annual salary, C asked the Plaintiff whether the Plaintiff can play a proper role, and the Plaintiff’s “I will go to the situation that the Plaintiff would go to the situation that the Plaintiff would go to the Plaintiff.” Accordingly, C said, “I will think during the weekend.”

C. On July 31, 2017, C, the representative director of the Defendant, could not receive a demand on the annual salary from the Plaintiff. On the other hand, it is inappropriate for the Plaintiff to play his role as the team leader with the responsibility of manager because the Plaintiff’s dissatisfactions on personnel affairs and annual salary remains. Accordingly, the Plaintiff demanded that it be changed to work as a team leader of the Arabic team. Accordingly, the Plaintiff said that “I will retire to me. I will retire to me. I will retire to me. I do not say that I will retire to me. I will not leave from her company, but only that the Plaintiff will take the position of the Plaintiff.” During this period, I would like to consider the date related to the acquisition and transfer of affairs during this period (from August 1, 2017 to 2). The Plaintiff used the framework leave during this period.

D. During the Plaintiff’s leave period, the Defendant publicly announced the purport that “the Plaintiff voluntarily retired from the company.” On August 1, 2017, the Defendant deleted the Plaintiff’s name from the organization of August 1, 2017, and entered the team leader of the Art Team as G, and took measures to block the Plaintiff’s access to the work program. Upon completion of annual leave, the Plaintiff goes to work on August 3, 2017, and the Defendant knew that he/she took the above measures during the Plaintiff’s leave period, he/she would not retire from the Defendant’s representative director C and three directors. However, even if the Plaintiff voluntarily retired from the Plaintiff, C notified that he/she would be unable to enter the company by deleting his/her fingerprints from H even if he/she goes to work on August 4, 2017 (i.e., the Defendant treated the Plaintiff as a member dismissal on August 4, 2017).

E. Meanwhile, on July 5, 2017, the Defendant concluded an employment contract with the Plaintiff and agreed to determine the Plaintiff’s wages as annual salary of KRW 65 million, and to pay 1/12 each month’s annual salary.

[Reasons for Recognition] The facts without dispute, Gap's statements in Gap's 2, 3, 6, 9, and the purport of the whole pleadings.

2. Determination as to the claim for confirmation of invalidity of dismissal

A. The parties' assertion

1) The plaintiff's assertion

The Plaintiff’s expression of “I am only to C on July 31, 2017” is that the expression was made without any justifiable reason and without any genuine intention to resign, and the Defendant was aware or could have known of this, and thus, it is not effective as a declaration of intention to resign. Nevertheless, the Defendant’s dismissal against the Plaintiff on August 4, 2017 constitutes termination of the labor contract relationship by the employer’s unilateral intention, namely, dismissal. However, the Defendant’s dismissal against the Plaintiff is null and void as there is procedural defect.

2) The defendant's assertion

On July 31, 2017, the Plaintiff expressed his/her intention to resign to the Defendant on his/her own by stating that he/she would be “I will keep the Defendant,” and such declaration of intention is not an indication of the truth, and even if it is an indication of the truth, it does not constitute a case where the Defendant knew or could have known it. Thus, the labor contract relationship was terminated by the Defendant’s voluntary acceptance of the Plaintiff’s resignation. Therefore, there was no fact that the

B. Determination

1) The plaintiff's expression of intention to resign

In full view of the following circumstances revealed by adding the aforementioned facts and the aforementioned evidence as seen earlier, Gap evidence Nos. 10, Eul evidence Nos. 1, 2, 3, and 7 to the overall purport of the arguments and the whole purport of the arguments, it is not possible for the plaintiff to express his intention to resign. The plaintiff's declaration of resignation is not a declaration of intention to resign. The defendant's demand that the plaintiff unilaterally demand a change of occupation to a team member from the team leader of the Atept team to unilaterally demand a change of occupation to a team member, and the defendant's strong objection against the defendant and the defendant's demand for a change of occupation to a team member, can be understood as the expression of his opinion by using extreme expressions, and the defendant's representative director C also knew or could have known it. Therefore, the plaintiff's declaration of resignation falls under the proviso to Article 107 (1) of the Civil Act and thus becomes null and void.

A) The Plaintiff requested the Defendant to improve treatment, such as promotion and annual salary, and subsequently refused all of them. Rather, the head of the team demanded the Defendant to change the job to a team member. Furthermore, it is not appropriate for the Defendant to play the role as a manager-level team leader inasmuch as the details of the Plaintiff’s complaint on personnel affairs and annual salary remain due to a change of occupation to a lower-way position, that is, it is inappropriate for the Plaintiff to play the role as a manager-level team leader inasmuch as there is a complaint on personnel affairs and annual salary,” and otherwise, it is difficult to recognize the need for job duties to demand a change of occupation to the Plaintiff (which is insufficient to recognize legitimacy only with the descriptions in subparagraphs 4 and 5-1 through 4). Since it appears that the demand for a change of occupation to the Plaintiff was unreasonable, the Plaintiff, who received such unfair demand, could have sufficiently anticipated that the Plaintiff, who received such demand, recognized the Defendant’s unilateral and dynamic demand for a change of occupation to a lower-ranking position as a retaliation for his treatment.

B) The Plaintiff’s answer to the situation that it depends on the situation, and it cannot be readily concluded that he/she will not perform his/her duties normally as an Arabic, and there is a lot of room to regard it as a part of the strategy to draw favorable results in the process of negotiations related to promotion and annual salary.

C) Article 21(1) of the Defendant’s Personnel Management Regulations provides that when a member intends to retire, the member shall submit a resignation at least one month prior to the desired date of retirement and obtain approval from the personnel management authority. Nevertheless, the Plaintiff did not submit a resignation to the Defendant, and the Defendant was immediately taking measures to terminate the labor contract relationship with the Plaintiff, i.e., before the expiration of one month after the Plaintiff’s statement that “the Plaintiff would grow.”

D) On July 31, 2017, the Plaintiff said that “I will keep the Defendant’s e-mail to the Defendant,” and said that “I would leave the Defendant’s e-mail team so that D would have come to work as team members.” The e-mail of the software used for the work of the team members of the Ate Team was called “I would have come to her fe-out to the E-mail team member.” The Plaintiff transferred the name of the licensee of the software used for the work of the Ate Team to D from the Plaintiff to the e-mail address of the recruitment site to the representative director C or E of the Plaintiff. However, all such a series of words and actions by the Plaintiff seem to have been made at the time of a unilateral and e-mail demand from the Defendant to change the e-mail address of the recruitment site from the Plaintiff to the representative director C or the director E.

E) The Plaintiff, while making a statement to the Defendant, was on leave during this period, was aware of the fact that the Defendant took measures such as blocking access to the work program between him and that he would not immediately leave the Defendant’s representative director and the directors. This case’s assertion was unjust.

2) Effect of the defendant's disposition

The grounds for termination of a labor contract may be divided into retirement made by the employee’s intention or consent, dismissal made by the employee’s unilateral will against the employee’s will, and automatic extinguishment, regardless of the employee’s intent. Of them, dismissal means termination of all labor contract relations made by the employee’s unilateral will against the employee’s will, regardless of the name or procedure actually unfavorable to the workplace (see, e.g., Supreme Court Decision 2010Da92148, Mar. 24, 2011).

Examining the aforementioned facts in light of the legal principles as seen earlier, the Defendant’s measures that the Plaintiff concluded a labor contract by treating the Plaintiff as having declared genuine resignation by taking advantage of the Plaintiff’s emotional response to expressing the complaint and the intention of refusal against the Defendant who requested the Plaintiff’s transfer of occupation toward an unjust manner without the intention of retirement constitutes dismissal as the termination of the labor contract relationship concluded by the employer’s unilateral intent.

However, dismissal is effective only when there is a justifiable reason or urgent managerial necessity, and the employer, in order to dismiss a worker, must notify in writing the grounds for dismissal and the time of dismissal (Articles 23, 24, and 27 of the Labor Standards Act). Also, according to the evidence No. 7, the fact that the Defendant’s personnel management regulations (Articles 15 and 16) stipulate that the Defendant’s personnel management regulations shall be subject to disciplinary dismissal upon the resolution of the Personnel Personnel Committee can be acknowledged. However, there is no evidence to acknowledge that the Defendant’s dismissal against the Plaintiff as of August 4, 2017 requires justifiable reasons or urgent managerial necessity, or that the procedure legality is met.

Therefore, the dismissal of the defendant against the plaintiff is null and void.

3. Determination on the claim for wages

In a case where a dismissal disposition against a worker becomes null and void, an employment relationship is still valid during that period, and an employee’s failure to provide labor during the period of dismissal is attributable to an employer’s cause attributable to which the employee was unfairly dismissed. As such, an employee may seek payment of the entire amount of wages that can be paid in return for the continued work pursuant to Article 538(1) of the Civil Act (see, e.g., Supreme Court Decision 93Da11463, Dec. 21, 1993).

According to the above facts, the defendant is obligated to pay the plaintiff the amount of money calculated by the ratio of 5,416,666 won per month (=65,000,000 won ± 12 months) to the wages that the plaintiff could have received in return for a continuous work from August 4, 2017 to the reinstatement.

4. Conclusion

Therefore, it shall be accepted for the confirmation of invalidity of dismissal and the claim for wages. Since the part concerning each of the above claims in the judgment of the court of first instance is unfair with different conclusions, the part concerning each of the above claims in the judgment of the court of first instance shall be revoked and the above claim shall be accepted, and it is so decided as per Disposition by the assent of all participating Justices.