2018AD 27351 Nullification of dismissal

Kim member (a family name)

Ulsan East-gu District

Law Firm *

Attorney Shin-*

Hyundai Heavy Industries Co., Ltd., a lawsuit taking over the lawsuit of Hyundai Heavy Industries Co.

Ulsan East-gu defensive cycle 1000(HaHan-dong), 1000

A representative director, a representative director, or a director (a director).

Law Firm(LLC) + ＋

Attorney Cho ＋, Kim + +

June 17, 2020

August 19, 2020

1. The plaintiff's claim is dismissed.

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

It is confirmed that the dismissal of the Defendant on April 15, 2017, against the Plaintiff, was null and void.

1. Basic facts

A. Status of the parties

The defendant is a company that builds, repairs, and sells ships. The plaintiff is a person who was employed by the defendant company from February 1, 1994 to February 14, 1996, and worked in the painting five books from February 15, 1996 to April 14, 201, and was punished on April 15, 2017.

B. The plaintiff's work contents

1) The Defendant’s shipbuilding process consists of making a structure of the vessel, making a block with sculptures, and re-melting the block. The work process of painting 5 is divided into the preceding work and the rear work process. The preceding work is the work of sealing the inside of the block using a frame or tsheshesheshes, and the latter work is the work of completing the course by putting the above block on the outside and sealing the outer plate.

2) The Plaintiff was in charge of the prior process in the painting 5 book, and the Defendant, upon the apparenting of the prior process, performed the subsequent process from January 1, 2016. The Plaintiff was absent from office, and was on leave of absence from office due to a new illness.

1) The Plaintiff used the Plaintiff’s annual and monthly leave from December 17, 2015 to February 3, 2016, and did not attend the company from February 4, 2016 to February 17, 2016.

2) The Plaintiff used a new type of leave of absence from February 18, 2016 to August 15, 2016 on the ground that the burden of work, etc. conducted at a high place using the accusation vehicle in the aftermath process resulted in unstable and depression. During the said leave period, the Plaintiff was provided 13 times from the medical clinic of Kim doctor’s mental health department and 3 times from the Yangsan Hospital.

3) On May 30, 2016, the Plaintiff submitted to the Defendant a medical certificate from May 30, 2016, stating that “the Plaintiff is deemed to have no impediment to work life due to the change of evidence,” and returned to the Defendant on August 16, 2016.

D. The Plaintiff’s absence from office without permission, and the dismissal of this case

1) The Plaintiff was absent from office without permission for 11 days from January 12, 2017 to January 26, 2017, from February 16, 2017, and February 22, 2017, from February 24, 2017, from February 24, 2017 to March 13, 2017.

2) On January 2017, the Defendant notified the Plaintiff of the employment request stating that “If the Plaintiff fails to take a job within seven days after receipt of the employment request, he/she shall be deemed to have no intention of employment and take measures to retire from work” on January 24, 2017, the Defendant was absent from work without permission for the nine consecutive days, and then notified the Plaintiff of the employment request on March 7, 2017, when the Plaintiff was absent from work without permission for the seven consecutive days even around March 2017.

3) On March 8, 2017, the Defendant notified the Plaintiff of a demand for appearance of the personnel committee, and held a personnel committee on March 16, 2017. The said personnel committee decided to dismiss the Plaintiff on the ground that “unauthorized absence of the term and refusal to comply with a company’s demand for employment” was the cause of disciplinary action, and the Plaintiff was notified of the above decision on March 21, 2017. The Plaintiff filed a request for reexamination. However, the personnel committee decided to dismiss the request for reexamination on April 7, 2017. Accordingly, the Defendant took disciplinary action against the Plaintiff on April 15, 2017 (hereinafter “instant dismissal”).

4) Although the Plaintiff filed an application for remedy against unfair dismissal and unfair labor practices with the Ulsan Regional Labor Relations Commission, the Plaintiff received a dismissal decision, and the Plaintiff filed an application for review with the National Labor Relations Commission, but withdrawn the said application on December 13, 2017.

E. Reasons for the disposition of approval for medical care to the plaintiff

On December 8, 2017, the plaintiff applied for medical care benefits to the Korea Labor Welfare Corporation as well as the Korea Labor Welfare Corporation's approval of ‘Adadadadadada'.

On July 31, 2018, the Korea Workers' Compensation and Welfare Service confirmed the diagnosis name of the 'compile' in the medical record book additionally submitted by the Plaintiff at the time of the determination of medical care benefits, taking into account the fact that the adaptation disorder is an invention related to stress, the Plaintiff started medical treatment into account that the adaptation disorder occurred on February 4, 2016 and paid temporary layoff benefits from February 5, 2016.

[Ground of recognition] Facts without dispute, Gap 2, 3, 6 through 8, Eul 1 through 3,6, 11, 13, and 14, and the fact-finding reply to the Korea Labor Welfare Corporation, the purport of the whole pleadings

2. The plaintiff's assertion

The plaintiff asserts that the dismissal of this case is null and void for the following reasons.

A. Article 23(2) of the Labor Standards Act provides that an employee shall not be dismissed during a period of suspension of work for medical care of an occupational injury or disease and for 30 days thereafter. Since the period of suspension of work for medical care such as depression, etc. at the time of the dismissal of the instant case, the dismissal of the instant case is null and void in violation of Article 23(2) of the Labor Standards Act.

B. Article 129 of the collective agreement cannot take personnel measures, such as disciplinary action and transfer of departments for any reason during the period of dispute. However, the term "period of dispute" refers to the period from the date when the resolution of the union resolution was made to the date when the industrial action is completed to the date when the industrial action is completed. As such, the dismissal of this case during the period of dispute is null and void. Article 33 of the collective agreement provides that disciplinary action may be mitigated where there is room for normal participation. However, Article 33 of the collective agreement provides that disciplinary action may be mitigated if the absence without permission is a result of depression recognized as an occupational accident. Thus, it is unreasonable to choose dismissal by disciplinary action against the plaintiff.

3. Determination

A. Whether the dismissal of this case violates Article 23(2) of the Labor Standards Act

1) Relevant legal principles

Pursuant to Article 23(2) of the Labor Standards Act, an employer shall not dismiss an employee during a period of suspension of work for medical treatment of an occupational injury or disease and for the next thirty days. This is the period during which the employee loses his/her labor force due to an occupational accident, and the period of 30 days thereafter, considerable to recovering the labor force due to the occupational accident. Therefore, the employee is absolutely seeking to protect the employee from threat of his/her actual position. Therefore, even if the employee is under medical treatment due to occupational injury, etc., even if he/she is under duty due to the occupational injury

In a case where it is not deemed necessary to suspend business, the dismissal under the above provision does not fall under the period of suspension of business. In such a case, whether it is necessary to suspend business for the purpose of medical care ought to be determined by comprehensively taking account of the objective circumstances, such as the degree of occupational injury, etc., treatment process and method of treatment such as injury, details and intensity of business, and worker’s attitude. Therefore, the circumstances where approval for medical care under the Industrial Accident Compensation Insurance Act has been granted to the relevant employee before and after the dismissal and the temporary layoff benefits have been paid may serve as the basis for determining whether the dismissal falls under dismissal during the period of suspension of business under Article 30(2) of the former Labor Standards Act, but the court has actually determined whether it is necessary to suspend business for the purpose of medical care at the time of the dismissal, based on the aforementioned objective circumstances without being bound by the court (see Supreme Court Decision 2009Da63205, Nov.

2) Specific determination

The above facts, the evidence mentioned above, and each of Gap evidence Nos. 1, 5, 9, 15

In light of the following circumstances, it is difficult to recognize that at the time of dismissal of this case, the Plaintiff was in need of suspension of business for the medical care of occupational disease, taking into account the results of the examination of medical records entrusted to the head of the hospital, the results of the examination of the fact-finding response by the Kim doctor Kim, the medical corporation 100 Medical Foundation 100 Hospital (hereinafter referred to as the "A0 hospital") and the overall purport of the argument. Accordingly, the Plaintiff’s assertion on this part is rejected).

A) The Plaintiff received a medical examination from the medical doctor of Kim Jong-chul for six months of his/her temporary retirement from office, and from the medical doctor of Yangsan-si on May 30, 2016, the Plaintiff stated that the Plaintiff received a outpatient treatment from the main source from February 4, 2016 due to symptoms, such as the appeal, chest pressureing, scarcitying, depression, and lack of self-esteem, and thus, it would not interfere with the work life. The Plaintiff seems to have shown symptoms to the extent that there was no impediment to the work life at the time of his/her reinstatement.

B) After the Plaintiff was reinstated on August 16, 2016 and March 13, 2017, the Plaintiff did not receive any specific treatment due to the above symptoms (the Plaintiff received treatment from the Kim Mental Health Doctor on March 16, 2017, after receiving the Defendant’s notice of attendance from the Personnel Committee), and there was no fact that the Plaintiff requested the Defendant to convert from work. The Plaintiff was absent from work without permission from January 2017. The evidence submitted by the Plaintiff alone is insufficient to deem that the depression occurred due to the Plaintiff’s given work and the Plaintiff was absent from work without permission. Unless there was any evidence to prove that the Plaintiff’s work could not have been performed by the Plaintiff at the time, it is difficult to deem that depression, etc. was due to the Plaintiff’s work.

C) The medical examination of March 16, 2017 by a doctor Kim Jong-soo stated that "the name of illness is uneasy and easy, and it is judged that it is necessary to undergo medical treatment for the next three months due to symptoms such as uneasy appeal, chest pressure, depression, depression, and lack of self-esteem (the need to undergo medical treatment)." On May 29, 2017, the diagnosis of the doctor's highest doctor (the second doctor) who belongs to the hospital (the second doctor) was unable to undergo medical treatment for the next three months." In light of the following, it is difficult to view that the name of the disease was easy, in detail, uneasy, uneasying, uneasying, uneasying, uneasying, and inorganic depression (the first doctor's disease, and it was an external interview and psychological test, and there is no need to undergo medical treatment or consultation, and even if the Plaintiff did not provide medical treatment for a certain period of time due to the Plaintiff's normal work disorder.

D) The Plaintiff asserts to the effect that it is necessary to suspend his/her business due to absence from work without permission. However, there is no fact that the Plaintiff was absent from work without permission, and the Plaintiff’s failure to perform his/her duty to provide labor upon his/her own judgment is difficult to deem that there is a direct relation

B. Whether the dismissal of this case violates Article 129 of the collective agreement

1) The provision prohibiting the personnel measures, such as disciplinary action or transfer, against a member during the dispute period, is aimed at guaranteeing substantial rights to collective action by a trade union by preventing the activities of a trade union from undermining due to personnel measures, such as disciplinary action, against a member who participated in an industrial action during the dispute period. Therefore, if an industrial action is substantial and procedurally justifiable, it shall not be deemed that the commencement of disciplinary proceedings, including the commencement of such disciplinary action, cannot be conducted during the dispute period; however, it shall not be deemed impossible to take disciplinary action even in a case where the industrial action is not illegal or is unlikely to be substantially guaranteed with the right to collective action (see Supreme Court Decision 2010Du20362, Feb. 15,

2) The following facts can be acknowledged according to the respective descriptions of Gap evidence 15 and Eul evidence 21 and the purport of the whole pleadings.

Article 129 of the defendant's collective agreement provides that the company shall interfere with, interfere with, and take unfavorable measures against the dispute.

No action shall be taken, and personnel measures for any reason shall not be taken during the period of the dispute, such as disciplinary action or transfer of departments: Provided, That the term "period of the dispute" means the period from the date on which a union resolution is passed to the date on which the industrial action is terminated.

On June 17, 2016, the Hyundai Heavy Industries Branch of the Korea Metal Trade Union (hereinafter referred to as the "Defendant Trade Union") started the strike on July 20, 2016 after a resolution was passed at a temporary conference of delegates and going through a union member vote, as listed below. The Plaintiff participated in the strike three times from January 11, 2017 to February 23, 2017, and the Defendant Trade Union concluded a wage agreement and a collective agreement with the Defendant Company on February 13, 2018.

A person shall be appointed.

3) In light of the aforementioned legal principles, the Defendant trade union conducted a partial strike from July 20, 2016 to February 22, 2017, and the full-scale strike from February 23, 2017 to February 27, 2017. However, the Defendant’s specific business entity from February 28, 2017 to June 27, 2017 did not conduct any strike for about four months. The instant dismissal was conducted around March 16, 2017, when considering the Plaintiff’s status and the number of the Plaintiff’s participation in the strike, etc., it is difficult to deem that the Defendant trade union’s collective action against the Plaintiff was substantially guaranteed due to disciplinary action against the Plaintiff, and thus, it cannot be said that the instant dismissal was in violation of Article 129 of the collective agreement.

We cannot accept this part of the Plaintiff’s assertion. Whether the dismissal of the instant case violates Article 33 of the collective agreement

1) Article 70 subparag. 2 of the Defendant’s rules of employment provides that a person who has been absent without permission for at least seven days during a month without justifiable cause shall be subject to disciplinary action when he/she has been absent from office continuously or frequently for at least three days during the month, or when he/she has been absent from office for at least seven days without prior submission. Article 14 subparag. 9 of the same Decree provides that a person who has been absent from office without permission for at least seven days during the period of his/her employment shall be treated as retirement when he/she has no response within seven days, regardless of the company’s request for employment: Provided, That this may not apply where there was a reason objectively acceptable after the absence due to unavoidable circumstances, but there is an objective reason. Article 33 of the collective agreement provides that a person who falls under the grounds for disciplinary action and who

2) As seen in the above basic facts, the Plaintiff was absent from work without permission for 24 days from January 12, 2017 to March 13, 2017, and the Defendant Company did not reply to the Employment Request dispatched.

In addition, as seen in the above 3. A.2, it is difficult to see that the absence without permission of the Plaintiff is a result of depression, and it is difficult to consider the degree of the grounds for disciplinary action against the Plaintiff, and there is room to consider otherwise. Thus, the Defendant cannot be deemed to violate Article 33 of the collective agreement on the ground that the Defendant selected dismissal due to disciplinary action against the Plaintiff.

The plaintiff's assertion on this part is not accepted.

4. Conclusion

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

The presiding judge, the senior judge;

Judges Yellowia

Judges Lee Dong-young

(i)

A person shall be appointed.

2) The Plaintiff asserts that the absence of work constitutes a “suspension of work due to occupational disease” and thus cannot be considered as a ground for the disciplinary action, but the same is the same.

The plaintiff's above assertion is without merit.