207Ahap24322 Nullification of dismissal, etc.

A

B Environment Corporation

Attorney Q Q et al., Counsel for the defendant-appellant

May 23, 2008

July 4, 2008

1. The defendant's dismissal against the plaintiff on August 29, 2007 confirms that the dismissal is null and void. 2. The defendant shall pay to the plaintiff the amount equivalent to KRW 1,850,000 per month from August 29, 2007 to the reinstatement.

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

4. Paragraph 2 can be provisionally executed.

The same shall apply to the order.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged by comprehensively taking account of Gap evidence 1 through 7, Eul evidence 9-1 through 4, Eul evidence 1, Eul evidence 2-2, Eul evidence 3-1, 2, 3-2, Eul evidence 4, Eul evidence 5-1, 2, 3, Eul evidence 5-2, 6, Eul evidence 7-1 through 7, Eul evidence 8-1 through 9, Eul evidence 8-1 through 9, and testimony of witness F.

A. Defendant Company is a company established on March 6, 1995 and engaged in waste collection and transportation business, etc., and is the Plaintiff’s employer, and the Plaintiff is an employee who worked as a door collection agent of the Defendant Company since August 6, 200.

B. On December 15, 1998, the Defendant reported to the Minister of Labor the rules of employment (hereinafter referred to as the “instant rules of employment”) prepared by hearing the opinions of its employees on December 15, 1998, and the said rules of employment only stipulate the types of disciplinary action and the grounds therefor (Articles 93 and 94).

C. On November 2003, the Plaintiff joined the Busan Regional Trade Union, and the Defendant Company entered into a collective agreement with the Busan Regional Trade Union on November 13, 2003 (hereinafter “instant collective agreement”) and applied it to the members of the Defendant Company’s workplace including the Plaintiff. However, Article 17 of the said collective agreement provides that “if the Plaintiff intends to take disciplinary action against a partner, it shall be decided by the agreement of the labor-management representative.”

D. Around March 2006, the defendant company's Busan Regional Trade Union (the plaintiff, C, D, and E), including the plaintiff, was admitted to a total of four members (the plaintiff, C, D, and E), but all of them withdrawn from the above Busan Regional General Trade Union on March 23, 2006 and entered into the National Democratic Union Trade Union (the defendant company was not a worker of the defendant company who was admitted to the National Democratic Union Trade Union until the time) with nine members of other literary collection members of the defendant company on March 23, 206.

E. On July 25, 2007: (a) around 23:10, the Plaintiff damaged the office fixtures of the Defendant Company’s office in a size equivalent to KRW 5,144,315 at the 13th market price; (b) was prosecuted for such criminal facts and was sentenced to a suspended sentence for six months in the Busan District Court Decision 2007Kadan4526 Decided October 30, 2007.

F. The Defendant Company dismissed the Plaintiff on August 29, 2007 on the ground of the above damage action (hereinafter “instant dismissal”).

G. At the time of the instant dismissal, the Plaintiff received wages of KRW 1,850,000 per month from the Defendant.

2. The assertion and judgment

After considering the premise that the collective agreement of this case applies to disciplinary procedures for dismissal of this case, the plaintiff asserted that dismissal of this case was unlawful since it did not go through the agreement procedures of union members and company representatives in violation of Article 17 of the collective agreement of this case. Since the collective agreement of this case was concluded between Busan and the union members, it cannot be applied to the plaintiff who is the union members of the National Democratic Union, and the rules of employment of this case are unnecessary to apply the above disciplinary procedures, the plaintiff's dismissal of this case is legitimate. Accordingly, it is not necessary to examine which of the collective agreement of this case and the rules of employment of this case should be applied to the disciplinary procedures for dismissal of this case, Gap's evidence 9, 10, 11, 13, and Eul's evidence 20-1, 222, and Gap's 1 through 13, the general meeting of the National Labor Union, which was revised to the above general meeting of the plaintiff's union members of this case, and the plaintiff's general labor union of this case and the plaintiff's union of this case, which were changed to the above general labor union of this case.

Based on the premise that the collective agreement of this case is applied, Article 17 of the collective agreement of this case provides that the agreement of union and company representatives is an essential procedure for the formation of a disciplinary committee and resolution. According to the statements in the evidence No. 8-1 through No. 9, the defendant company only decided to dismiss G, who is a representative director, as the chairperson of the disciplinary committee, and the disciplinary committee that made G, who is a director H and a director, as the disciplinary committee members, as the chairperson of the disciplinary committee, and did not follow any agreement on the dismissal of the plaintiff. Thus, the dismissal of this case, which is not completely subject to the above procedure stipulated in the collective agreement of this case, is null and void, and there is a benefit to seek confirmation so long as the defendant company is dissatisfied with it.

In addition, since the dismissal of this case against the plaintiff of the defendant company is null and void as seen earlier, the labor contract between the plaintiff and the defendant company still remains valid, and the dismissal of the plaintiff after the above dismissal is attributable to the rejection of the plaintiff's labor provision due to the above dismissal that is null and void by the defendant company's rejection of the plaintiff's labor provision, which is caused by the reasons attributable to the defendant company. Thus, the defendant company is obligated to pay to the plaintiff the amount equivalent to the wages that the plaintiff would have received if the plaintiff had offered labor from August 29, 2007, which is the date of the above dismissal, to the time the plaintiff is reinstated.

3. Conclusion

Therefore, since the plaintiff's claim to confirm the invalidity of the dismissal of this case and the plaintiff's claim to seek wages during the period of dismissal is well-grounded, it is decided as per Disposition by all of them.

The chief judge, chief judge and associate judge

Judges Geman-type

The chief of judge;