[1] Whether the application of the rules of employment is excluded in a case where the collective agreement on the criteria for dismissal was amended more unfavorable to workers than the rules of employment (affirmative)

[2] In a case where a worker is unable to perform his/her duty to provide labor, whether the worker's failure to perform his/her duty to provide labor is justified by a unilateral notice (negative)

[1] Under the principle of collective agreement autonomy, a trade union may enter into a collective agreement with an employer to change terms and conditions of employment unfavorably, as well as a collective agreement to change terms and conditions of employment in favor of an employer. Thus, barring special circumstances, such as where the collective agreement to change terms and conditions of employment may be deemed null and void, barring special circumstances, such agreement may not be deemed null and void, despite the amendment of the collective agreement, if the rules of employment identical to the previous collective agreement apply as it is to the rules of employment, the amendment of the collective agreement cannot achieve its purpose. Therefore, the amended collective agreement naturally accords with the intent of the parties to view that the amended collective agreement includes an agreement to exclude the application of favorable terms and conditions under the rules of employment and to preferentially apply the amended collective agreement, and therefore, the application

[2] In a case where it is impossible for an employee to perform his/her duty to provide labor under an employment contract, the failure of the employee’s duty to provide labor may not be justified by the employee’s prior or ex post facto approval and the employee’s unilateral notification.

[1] Articles 29 and 33 of the Labor Union and Labor Relations Adjustment Act / [2] Articles 14 and 17 of the Labor Standards Act

[1] Supreme Court Decision 9Da7572 delivered on November 23, 1999, Supreme Court Decision 99Da67536 delivered on September 29, 200 (Gong200Ha, 2195), Supreme Court Decision 9Da67536 delivered on September 29, 200 (Gong200Ha, 2195), Supreme Court Decision 200Da30516, 30530, 30530, 30547 delivered on January 19, 201 (merged), Supreme Court Decision 2001Da240929 delivered on October 30, 201 (Gong201Ha, 2562, 2014, 209Da4019647 delivered on April 16, 201)

Plaintiff

The Chairman of the National Labor Relations Commission

1. A limited partnership company, a limited partnership company, and a limited partnership company

Seoul High Court Decision 2001Nu13951 delivered on August 21, 2002

The appeal is dismissed. The costs of appeal are assessed against the plaintiff, including the part arising from the supplementary participation.

1. As to the amendment to the disadvantage of a collective agreement

According to the facts acknowledged by the court below, Article 98 (d) 14 of the Rules of Employment of the Intervenor joining the Defendant (hereinafter “ Intervenor”) and Article 21 (1) 4 of the collective agreement prior to the amendment on January 21, 1998 provides that dismissal standards due to absence from work shall be at least seven days per month. The Intervenor’s labor and management agreed to severely punish the unauthorized absence from work on October 30, 1997, and accordingly, the number of the unauthorized absence from work under the collective agreement shall be reduced from 70 to 50 days per month, and the above collective agreement shall be amended on January 21, 1998, and the above provision of the Rules of Employment shall be amended on January 21, 1998, and shall be deemed to be effective in accordance with the amendment of the Rules of Employment (see, e.g., Supreme Court Decision 200Da9797, Sept. 29, 209).

In the same purport, the judgment of the court below which held that the dismissal standard of the above amended collective agreement applies to the disciplinary dismissal of this case is just and acceptable, and there is no error in the misapprehension of legal principles as to the disadvantageous alteration of the collective agreement as otherwise

2. As to the existence of grounds for dismissal of disciplinary action

Where it is impossible for an employee to perform his/her duty to provide labor under an employment contract, the employer's prior or ex post approval is required to justify this, and the failure to perform the duty to provide labor is not justified by the employee's unilateral notification (see Supreme Court Decision 97Da6926, Apr. 25, 1997, etc.).

The court below determined that the participant company's absence without permission shall be deemed absence due to traffic accident, disease, reserve forces training, etc. Article 31 of the collective agreement of the participant company, and Article 22 of the rules of employment shall obtain permission from the participant company by submitting a medical certificate, etc. 24 hours before the commencement of work where the participant company is unable to work due to disease or any other unavoidable reason. If the participant company is unable to work due to a sudden illness, etc., the participant company shall submit a medical certificate, etc. before the commencement of work, and shall submit a medical certificate and a statement of reasons after the commencement of work. The court below determined that the remaining absence except for the case where the participant company obtained permission from the participant company after submitting a medical certificate, etc. after the commencement of work due to the reasons prescribed in Article 31 of the collective agreement and the rules of employment, and rejected the plaintiff's assertion that there was a practice without permission if the participant company did not work by telephone prior to the commencement of work due to a sudden disease, etc.

3. As to the legitimacy and equity of dismissal of disciplinary action

If there is a provision on disciplinary dismissal in a collective agreement, rules of employment, etc., the dismissal under the provision shall be deemed to be a dismissal with justifiable grounds unless it is null and void as it violates the provisions of Article 27(1) of the Labor Standards Act. However, in the case of disciplinary dismissal under a collective agreement, it shall not be deemed to be a justifiable ground as a matter of course, but shall be justified in the case where there is a reason for an employee to the extent that the employee cannot continue to engage in an employment relationship with the employee concerned under social norms. Whether it is impossible to continue an employment relationship with the employee concerned under social norms shall be determined by comprehensively examining various circumstances, such as the purpose and nature of the employer concerned, the conditions of the workplace concerned, the status of the employee concerned and the job in charge, the motive and background of the act of misconduct, the impact on the company's business order, such as the risk of disturbing the order of deceptive scheme, and the past work attitude (see Supreme Court Decision 97Nu18189

In light of the overall circumstances as stated in its holding, the court below held that even if the intervenor company selected a disciplinary dismissal instead of deducting the wages equivalent to the number of absence days from work from the office on the part of the plaintiff who was absent from office for at least five days a month, the amount of the disciplinary decision cannot be deemed to have been excessive or abused the disciplinary right against the equity with non-labor union members. In light of the records on the premise of the above legal principles, the judgment of the court below is just and acceptable, and there is no error of misunderstanding of facts or misunderstanding of legal principles as to the

4. Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Cho-Un (Presiding Justice)