[1] The requirements for layoff and the location of the burden of proof as to the legitimacy of the dismissal in a lawsuit to revoke the Tribunal for Remedy against Unfair Dismissal

[2] The case holding that the dismissal dismissal cannot be justified

[1] In order for a company to be dismissed as a result of a managerial necessity, it shall be recognized that the relevant dismissal has objective rationality and social reasonableness, in full and in comprehensive consideration of all the circumstances, including whether it was an urgent administrative necessity, whether the employer has made considerable efforts to avoid dismissal, whether the employer has selected a person subject to dismissal in accordance with objective and reasonable standards, and whether it was faithfully consulted with the labor union or the worker.

[2] The case holding that the legitimacy of layoff cannot be recognized on the ground that it is not an objective and reasonable standard that the employee belonging to the department subject to the reduction, which is not the entire place of business where there is a managerial necessity of layoff, is not a person subject to layoff, and that it did not make efforts to avoid layoffs

[1] Articles 30(1), 30(2), 30(3), and 33(1) of the Labor Standards Act / [2] Article 30(2) of the Labor Standards Act

[1] Supreme Court Decision 94Nu5069 delivered on February 14, 1995 (Gong1995Sang, 1345), Supreme Court Decision 94Da52119 delivered on December 22, 1995 (Gong1996Sang, 480), Supreme Court Decision 96Nu8031 delivered on September 5, 1997 (Gong1997Ha, 316)

Seoul Newspaper Co., Ltd. (Attorney Kim Dong-hwan, Counsel for the defendant-appellant)

The Chairperson of the National Labor Relations Commission

New East-type (Law Firm Jin Law, Attorneys Excursion-ho et al., Counsel for the defendant-appellant)

1. The plaintiff's claim is dismissed.

2. The costs of the lawsuit shall be borne by all the plaintiff, including those resulting from the supplementary participation.

The decision made by the defendant on October 22, 1997 between the plaintiff and the defendant's assistant intervenor on the application case for the retrial of unfair dismissal shall be revoked.

1. The circumstances leading to the decision on reexamination of this case

The following facts are not disputed between the parties, or acknowledged by the parties, by integrating each description of Gap evidence 1, 2, Eul evidence 1-1 through 3, Eul evidence 2, 3, Eul evidence 4-1 through 3, Eul evidence 6-1 through 3, and Eul evidence 6-1 through 3, and there is no counter-proof otherwise.

(1) On February 1, 1963, the Intervenor joining the Plaintiff Company and retired from office on November 1, 1967. However, after entering the Plaintiff Company on March 15, 1972, the Intervenor was working as a deliberation team member for the president of the Seoul newspaper room from February 3, 1996 through the Deputy Director of the Social Department, the Deputy Director of the Living Science Department, the editing member, the Seoul Sports Sub-Director, and the Seoul Newspapers. However, the Plaintiff determined to implement a layoff on the ground that the causes for chronic managerial deficit are excessive labor costs, and recommended to voluntary retirement of the Intervenor, but failed to comply with this, the Intervenor dismissed the Intervenor on April 19, 197.

(2) Accordingly, the intervenor filed an application for remedy with the Seoul Regional Labor Relations Commission on the ground that the above dismissal did not meet the requirements for layoff, and on July 2, 1997, the Seoul Regional Labor Relations Commission (Seoul Regional Labor Relations Commission) concluded that the dismissal of the intervenor was an urgent administrative necessity, but on the ground that the dismissal of the intervenor was unfair due to retaliation and disciplinary dismissal against the refusal to recommend the voluntary retirement after the achievement of the management rationalization objective through layoff, and issued an order for remedy to the plaintiff that the plaintiff would have been entitled to receive wages if the intervenor was reinstated to the original position and worked during the period of the dismissal.

(3) The Plaintiff was dissatisfied with the remedy order issued by the Seoul Regional Labor Relations Commission and filed an application for reexamination with the National Labor Relations Commission. However, on October 22, 1997, the National Labor Relations Commission rejected the Plaintiff’s application for reexamination on the ground that the dismissal of the Intervenor was unfair, and therefore, the above remedy order was justifiable (hereinafter “instant award”).

2. Whether the instant judgment is lawful

A. The plaintiff's assertion

The plaintiff company was dismissed due to the urgent managerial need for accumulated personnel, and made efforts to minimize the possible dismissal, but it was inevitable to dismiss the intervenor because there is no other proper position to be granted to the high-ranking employee such as the intervenor. However, the National Labor Relations Commission recognized the effect of the dismissal which the plaintiff implemented, but made the decision in this case on the ground that it is improper to dismiss the intervenor as part of the layoff, which was erroneous in understanding the legal principles of the layoff or was erroneous in finding facts related to the efforts to avoid the dismissal.

B. Judgment on the Intervenor’s main defense

The Intervenor retired from retirement age at the Plaintiff Company on January 31, 1998, and therefore, even if the instant judgment was revoked, the Plaintiff was unable to dismiss the Intervenor, and thus, the instant lawsuit asserts that there is no benefit of lawsuit. However, in the instant case, the Seoul Regional Labor Relations Commission orders the Plaintiff to pay the amount equivalent to the wages that could have been received if the Plaintiff had worked during the period of dismissal, along with the Defendant’s reinstatement. As such, the Seoul Regional Labor Relations Commission orders the Plaintiff to pay the amount equivalent to the wages that could have been paid if the Plaintiff had been employed during the period of dismissal. Accordingly, the Intervenor’s retirement after the instant lawsuit was

(c) recognised facts

The following facts can be acknowledged in light of the above evidence and Eul evidence Nos. 5-1 through 16, Eul evidence No. 7, and the testimony at the front of the witness stand and the whole purport of the pleading, and there is no counter-proof otherwise.

(1) The Plaintiff Company publishing and selling newspapers caused a large amount of 4.2 billion won in 195, and 4.4 billion won in 1996, due to the deterioration of management environment, such as the increase in the price of newspaper sites and the decrease in advertising revenue by competition, etc., and the occurrence of large-scale deficit was anticipated in 1997, and it is determined that such large-scale deficit is likely to be prolonged, and that the main causes of cumulative personnel are excessive labor costs compared to competitors. On February 10, 1997, the board of directors held on the board of directors held on February 10, 1997, 3 of the deliberation team and the Publication Headquarters’s 72 employees under its control were abolished and decided to dismiss the Intervenor. The Plaintiff Company received a special retirement request from the Plaintiff to the date of February 25, 1997 to March 11, 1997, and 200 of the total number of employees under its jurisdiction and 362 of the Intervenor’s retirement leave was paid for 76.

(2) The intervenor was planned to retire from the retirement age as of January 31, 1998, as of December 16, 1937, but the plaintiff was entitled to the voluntary retirement as of January 31, 1998, and the plaintiff did not comply with the above. The plaintiff proposed that the intervenor would continue to serve as a contracting officer when the intervenor voluntarily retires. However, the intervenor refused the proposal, but dismissed the intervenor. However, if the intervenor voluntarily retires and works as a contracting officer, the intervenor would receive at least 70% of the basic salary during at least one year, and thus, the intervenor would have worked until the retirement age, or would have no difference in the monetary aspect. On the other hand, from the standpoint of the plaintiff company, the plaintiff company did not have any effect that the plaintiff company would receive retirement benefits, or that the plaintiff company would receive consolation benefits, or that the plaintiff company would be able to reduce the amount of personnel expenses.

(d) Markets:

(1) In order to deem that the so-called dismissal to dismiss workers due to business management needs, the relevant dismissal should be recognized as having objective rationality and social reasonableness, taking into account all the circumstances, including whether it was an urgent administrative necessity, whether the employer has made a considerable effort to avoid the dismissal, whether the employer has selected a person subject to dismissal in accordance with objective and reasonable standards, and whether it was faithfully consulted with the labor union or the worker (see Supreme Court Decision 96Nu8031 delivered on September 5, 197). Meanwhile, in a lawsuit disputing the appellate court for relief against unfair dismissal under Article 33(1) of the Labor Standards Act, the assertion and burden of proof as to the legitimacy of the dismissal shall be borne by the person who asserts it (see Supreme Court Decision 94Nu5069 delivered on February 14, 195).

(2) However, even in this case, even though there was an urgent managerial necessity for which the Plaintiff Company should dismiss the Plaintiff Company, ① it is not based on the entire place of business where the need for management arises in the selection of the person subject to layoff, and it is not objective and reasonable criteria for the Plaintiff Company to be employed as the person subject to layoff. ② In particular, with respect to the Intervenor who has been in excess of the retirement age and nine months, he recommended the Intervenor to be employed as the voluntary retirement and contract worker as part of efforts to avoid dismissal. In that case, in light of the fact that there is little effect of the reduction of personnel expenses that the Plaintiff Company could obtain, it cannot be deemed that the Intervenor’s dismissal of the Intervenor who did not accept the recommendation for voluntary retirement of the Plaintiff Company cannot be deemed as having objective rationality and social reasonableness, and there is no other data to recognize the legitimacy of the dismissal in this case.

(3) Therefore, the defendant's decision of this case which recognized that dismissal of the intervenor is unfair is just, and no other circumstance exists to find that the decision of this case is unlawful.

3 Conclusion

If so, the plaintiff's claim seeking revocation is dismissed on the premise that the judgment of this case is illegal, and the costs of lawsuit are assessed against the losing plaintiff. It is so decided as per Disposition.

Judges Lee Jong-chul (Presiding Judge)