208AD 10277 Invalidity of dismissal and wages

A person shall be appointed.

Seoul Special Metropolitan City, Nowon-gu ○○○ - 8 Olet 304 Dong-dong 304

△△ Incorporated

Seoul Special Metropolitan City, Nowon-gu 00 - 3

Codified representative, knives

Law Firm LLC, Attorney Lee Jae-soo

Attorney Lee Jin-jin

March 25, 2009

April 8, 2009

1. The part of the claim for nullification of the disciplinary dismissal of the instant lawsuit and the claim for reinstatement of the original position shall be dismissed, respectively.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by the Plaintiff.

The defendant's disciplinary action against the plaintiff on December 12, 2005 is invalid ("unfair dismissal").

However, it is confirmed that the defendant is the plaintiff. The defendant is 52,800,000 won and its substitute.

shall be calculated at the rate of 20% per annum from the day after the delivery date of the copy of the complaint of this case to the time of reinstatement of the plaintiff

D. The Defendant shall pay the Plaintiff the full-time return to the original position.

1. Basic facts

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

A. On April 13, 199, the Plaintiff entered into an employment contract with △△ Transportation Co., Ltd. (hereinafter referred to as “△△ Transportation”), and was under disciplinary action on December 12, 2005, on the ground that there was a violation of the provisions of the company’s regulations and instructions, including the use of transportation revenue (wholly managed violation), intimidation against users, various acts of reporting to the company, interference with and loss from the company, slander against the company and its users, defamation, neglect of duty, and any other acts of violating the company’s regulations and directions (hereinafter referred to as “instant disciplinary action”).

B. Accordingly, the Plaintiff filed an application for unfair dismissal with the Seoul Regional Labor Relations Commission. However, on February 23, 2006, the said Commission rejected the Plaintiff’s application for reexamination on the ground that it can be deemed that the instant disciplinary dismissal was a legitimate exercise of authority within the scope of △△ Transportation’s personnel right, and the Plaintiff filed an application for reexamination with the National Labor Relations Commission, but the said commission dismissed the Plaintiff’s application for reexamination on the same ground as the first instance judgment on July 27, 2006.

C. Meanwhile, on October 2008, the Defendant acquired the business from △△ Transportation around 2008.

2. The parties' assertion

A. On the grounds that the Defendant comprehensively acquired the business of △△ Transportation, the Plaintiff sought confirmation that the instant disciplinary dismissal against the Defendant is null and void, payment of wages of KRW 52,80,00 during the period of dismissal, and damages for delay thereof, and payment of damages for delay and payment of reinstatement.

B. As to this, the Defendant asserted that although the Defendant took over the business from △△ Transportation, the Defendant and △△ Transportation are separate corporations, and the Defendant asserted that there is no labor contract relationship due to the lack of the Plaintiff’s employment, the claim for nullification of dismissal should be dismissed on an improper basis.

3. Determination on the claim for wages

A. First, the employment relationship succeeded by the transfer of business refers to only the employment relationship with the workers who actually worked in the business sector as of the date of conclusion of the contract, and is not succeeded to the employment relationship with the workers who dispute the validity of dismissal as those dismissed before the date of conclusion of the contract.

B. In light of the above facts, it is reasonable to view that the Plaintiff had a dispute over the validity of dismissal while the Defendant had been dismissed from △△ Transportation at the time of acquiring the business of △△ Transportation, and it is difficult to view that the labor relationship between the Plaintiff and △△ Transportation has succeeded to the Defendant. Thus, the Plaintiff’s assertion on the Plaintiff’s wage based on the premise that the labor relationship is succeeded to, is without merit, without further review.

4. Determination as to the legitimacy of a request for nullification of disciplinary dismissal and nullification

Although the Plaintiff sought confirmation of invalidity of the disciplinary dismissal of the instant disciplinary action against the Defendant, as long as the Defendant did not succeed to the labor relationship between △△ Transportation and the Plaintiff, the Defendant cannot be deemed a person who has an objection to the disciplinary dismissal of the instant disciplinary action and the confirmation of invalidity, and thus, the Plaintiff’s claim for confirmation of invalidity of the disciplinary action against the Defendant is unlawful as it is against a person who has no interest in confirmation or who has no capacity to be the Defendant.

5. Determination on the legitimacy of the request for a reinstatement from one’s post

ex officio, the plaintiff is seeking the implementation of the original reinstatement against the defendant. However, if it is confirmed as invalid by seeking the confirmation of invalidity of the dismissal of disciplinary action as in this case, even if it does not seek a separate implementation of the original reinstatement, the legal effect of the status as an employee naturally restored is generated.

As such, it is reasonable to view that the plaintiff, as in the instant case, can achieve the purpose of the lawsuit even by taking disciplinary dismissal and seeking confirmation of nullity of the disciplinary action and payment of wages. Thus, claiming a separate implementation of the original position is unlawful as there is no benefit of lawsuit.

6. Conclusion

Therefore, the part of the claim for nullification and the claim for reinstatement of disciplinary action among the lawsuits of this case are unlawful, and thus, it is dismissed. The remaining claims of the plaintiff are dismissed as it is without merit. It is so decided as per Disposition.

Judge Seo-won of the presiding judge

Judges Lee Dong-hee

Judges Lee So-young