Asian Air Co., Ltd. (Attorney Kim Jae-chul et al., Counsel for the plaintiff-appellant)

The Chairman of the National Labor Relations Commission

The Intervenor joining the Defendant (Law Firm Shin, Attorney Kim Young-young, Counsel for the defendant-appellant)

April 28, 2016

1. On May 14, 2015, the National Labor Relations Commission rendered a revocation of the decision on review as to the case of an application for remedying unfair flight suspension between the Plaintiff and the Intervenor joining the Defendant on May 14, 2015.

2. The supplementary part of the costs of lawsuit shall be borne by the Intervenor, and the remainder shall be borne by the Defendant.

The same shall apply to the order.

1. Details of the decision on retrial;

A. The Plaintiff is a company established on February 17, 1988 and engaged in domestic and overseas air transport business, etc. using approximately 10,000 full-time workers. The Intervenor joining the Defendant (hereinafter “ Intervenor”) was employed by the Plaintiff on July 1, 1997 and has been engaged in flight duty.

B. On September 12, 2014, when the Intervenor served as a captain operating an aircraft operating A320 (A320), the Intervenor fell with Nonparty 3, a regular manager in charge of the Plaintiff’s safe operation at the toilets located in the Kimpo Airport crew’s waiting room. At that time, the Intervenor was in a state of sloping.

C. After that day, Nonparty 1, the team leader of the Plaintiff’s A 320 Safety Team, to which the Intervenor belongs, called the Plaintiff on the same day, instructed the Plaintiff to “infinite Do as it violates the Plaintiff’s regulations,” and asked the Intervenor to “finite Do.” However, the Intervenor’s finding Nonparty 1 was a discriminatory provision to prevent the Plaintiff from raising salt differently from a foreigner after the call was completed, and thus, the Intervenor could not comply with the above order. Accordingly, Nonparty 1 temporarily suspended the Intervenor’s flight business by changing the Intervenor’s Kimpo- Jeju flight schedule scheduled to be 19:20 on the same day.

D. On September 15, 2014, the intervenor presented a situation description explaining the reasons for raising infection to Nonparty 1. On the same day, Nonparty 1 sent an e-mail to the intervenor to the effect that he/she further specific and clear explanation on the reasons. On September 16, 2014, the intervenor again presented a situation description containing similar contents to the situation description as of September 15, 2014, and Nonparty 1 sent a specific e-mail to the intervenor, who requested the intervenor to respond to the above question. However, on September 17, 2014, the intervenor continued to answer the above question items, and Nonparty 1 sent several e-mail replys to the intervenor from September 25, 2014 until the end of 2014 to September 25, 2014, the intervenor suspended his/her duties for a certain period of 14th and 14th of the Intervenor’s work (the remaining e-mail manual and the remaining e-mail during the suspension period were changed.).

E. On the other hand, on September 19, 2014, the intervenor sent text messages and e-mail to the Nonparty 1, who had been able to continue the flight, despite having been able to inform him of the reason why the flight was suspended, and on September 25, 2014, sent e-mail to Nonparty 1 to the effect that he would be able to return to the flight operation under the unilateral instruction of the company. On the other hand, on September 25, 2014, Nonparty 4, the team leader of the Plaintiff’s flight support team, requested an interview to the intervenors, and accordingly, the interview was conducted between Nonparty 4 and the Intervenor on September 30, 2014. The intervenor stated that “I wish to amend the regulations, but will not comply with the above regulations until the amendment of the regulations.”

F. On October 6, 2014, the Intervenor had the foregoing interview and expressed his/her intent to return to the flight service to Nonparty 1 on October 6, 2014. The Intervenor interviewed the Intervenor on October 7, 2014, and then granted the Intervenor again from October 8, 2014 to October 10 of the same month after the period of observation on the ground service before the flight service.

G. On December 9, 2014, the Intervenor filed an application for remedy with the Seoul Regional Labor Relations Commission (Seoul Regional Labor Relations Commission) by asserting that “the instant flight suspension constitutes an unfair personnel disposition.” On February 4, 2015, the Seoul Regional Labor Relations Commission rendered a ruling dismissing the Intervenor’s application for remedy on the ground that “the Plaintiff’s appearance provision is unconstitutional and illegal, and the instant flight suspension cannot be deemed unlawful or unreasonable.”

H. On March 6, 2015, the Intervenor filed an application for reexamination with the National Labor Relations Commission on March 6, 2015 as to the said initial trial tribunal. On May 14, 2015, the National Labor Relations Commission revoked the said initial trial tribunal and rendered a decision to recognize that the instant flight suspension was an unfair disposition, and to issue relief order to the Plaintiff (hereinafter “instant review decision”).

I. The Plaintiff’s provisions and the part relating to this case in the collective agreement are as follows.

본문내 포함된 표 ▣ 임직원 근무복장 및 용모 규정(이하 ‘용모 규정’이라 한다) 제5조(근무용모 원칙) 임직원의 용모는 단정하고 청결을 유지하여야 한다. ① 남직원 1. 두발은 옆머리가 귀를 덮지 않으며, 뒷머리는 와이셔츠 깃에 닿지 않게 하고 단정하고 청결한 상태를 유지하며, 삭발 등 지나치게 짧은 머리, 장발, 지나친 염색, 탈색을 비롯하여 기타 혐오감이나 불안감을 유발할 수 있는 머리 모양을 하여서는 아니 된다. 2. 안면은 항시 면도가 된 청결한 상태를 유지하며, 수염을 길러서는 아니 된다. 다만, 관습상 콧수염이 일반화된 외국인의 경우에는 타인에게 혐오감을 주지 않는 범위 내에서 이를 허용한다. 제8조(위반자에 대한 조치) 동 규정 위반 시 징계사유가 된다. ▣ 조종사노조 단체협약(이하 ‘단체협약’이라 한다) 제32조(징계종류) 조합원이 받을 수 있는 징계의 종류는 다음과 같다. 5. 업무정지 ① 항공업무정지 : 항공관계법이 정하는 항공업무 종사자로서의 본연의 업무를 정지시킨다. 국토교통부의 행정처분이 있는 경우 중복하여 징계하지 않는다. ② 지상근무 : 비행 승무를 정지시키고 지상근무에 종사하게 한다. ③ 국제선승무정지 : 국제선 비행 승무를 정지시킨다. ④ 노선제한 : 특정 노선의 승무를 정지시킨다.

[Reasons for Recognition] Facts without dispute, Gap's statements, Gap's statements, 1, 2, 3, 5 through 11, 13, 16, 17, 18, Eul's statements, Eul's statements, Eul's statements and the purport of the whole pleadings

2. Whether the decision on the retrial of this case is lawful

A. The nature of the instant flight stop

1) The parties' assertion

The Plaintiff asserts that the instant flight suspension was made as part of the personnel authority, and that the instant flight suspension constituted a disciplinary action, as stipulated under Article 32 subparag. 5 of the collective agreement.

2) Determination

A) In a transportation business entity, the disposition of suspension of service on board is a passive attitude of the employer's order of work on board, which is an order of work for workers to perform their duties as part of the exercise of management right, and where such disposition of suspension of service on board arises from business needs or reasonable grounds for performing duties, it shall be deemed that it belongs to a legitimate order of work. Thus, even if the collective agreement includes a kind of disciplinary action, it is possible to suspend service on board as an order of work separately from the suspension of service on board as a disciplinary action (see Supreme Court Decision 96Nu13231, Nov. 25, 1997).

B) The Plaintiff’s act of temporarily suspending the Plaintiff’s work on the ground of the collective agreement (the suspension of service on the ground) and the suspension of service (the suspension of service as an air service employee prescribed by the Aviation-Related Act) is stipulated as disciplinary action as seen earlier. However, considering that the Plaintiff’s act of temporarily stopping the Plaintiff’s work on the ground that the Intervenor did not take measures against the Intervenor for the suspension of service on the ground that the Intervenor did not take measures against the Intervenor for the suspension of service on the ground that the Plaintiff’s act of temporarily stopping service on the ground that the Intervenor did not take measures against the Intervenor for the suspension of service on the ground that the Intervenor did not take measures against the non-party 1 until September 12, 2014, it is reasonable to view that the Intervenor’s act of temporarily stopping the service on the first day of September 12, 2014 as an act of taking measures against the Intervenor for the suspension of service on the ground that the Intervenor did not take measures against the non-party 1’s act during the suspension of service on the first day.

C) Thus, the instant flight suspension was carried out in a purport similar to the instant order of standby, which is a provisional measure to prevent an employee from temporarily performing his/her duties due to his/her current position or duties where his/her current position or duties are expected to be in the future. Although the Plaintiff’s collective agreement provides that “business suspension” is a kind of disciplinary action, it shall be deemed that the Plaintiff’s collective agreement is a separate order of duties, which differs in nature from the disciplinary measure that differs from the nature of the disciplinary measure that differs for the purpose of maintaining corporate order against the past misconduct of the employee (see Supreme Court Decision 2009Da86246, Oct. 13, 201).

D) On this ground, the intervenor clearly stated that the violation of Article 8 of the plaintiff's appearance regulations constitutes a ground for disciplinary action, and the plaintiff also clearly stated that the violation of the above provision constitutes a ground for disciplinary action in the course of holding a personnel committee for disciplinary action against the intervenor on November 2014. Thus, the suspension of flight in this case is a disciplinary action. However, as seen above, the intervenor's above assertion that the suspension of flight in this case was not a ground for disciplinary action against the plaintiff's violation of appearance regulations is without merit. Further, the intervenor's above assertion on the premise that the suspension of flight in this case was made as a sanction against the plaintiff's violation of appearance regulations. Further, the intervenor suffered more disadvantage than the reduction of wages corresponding to about 30% of monthly salary because the intervenor did not receive approximately 3,240,827 won due to the suspension of flight in this case, and therefore, the suspension of flight in this case constitutes a ground for disciplinary action in this case. However, it cannot be viewed that the plaintiff's monetary disadvantage is substantially identical to the disciplinary action in a collective agreement (see Supreme Court Decision 1984.

B. Whether the flight suspension in this case is a legitimate business order

1) The parties' assertion

A) The Plaintiff asserts that ① the Plaintiff’s appearance provision prohibits male employees from growing beards under Article 5(1)2, and employees have the duty to comply with such appearance provision, and the maintenance of a good uniform and appearance is the basic duty of workers, ② the bad appearance and attitude of flight crew directly connected to the Plaintiff’s customer confidence, ③ there is no reason to justify the Intervenor’s raising of beards in violation of the above appearance provision, ③ the Intervenor requires a strong observance of all the regulations, ④ the captain entirely responsible for the safe operation of aircraft, ④ the Plaintiff’s demand for a strong observance of all the regulations, ⑤ the Plaintiff’s failure to comply with the Plaintiff’s corrective direction and bylaws without any explicit refusal of compliance with the order and bylaws for the establishment of the flight discipline and the safety of flight, and the need and reasonable grounds for not placing the captain in his work, ④ the level of the Intervenor’s salary payment, and the Intervenor’s payment of the flight allowance in this case was not paid to the Intervenor, and the Intervenor’s payment of the flight allowance in this case was not paid to the Intervenor.

B) On this ground, the Defendant and the Intervenor asserted that (i) there was little time to directly handle passengers in the course of performing their duties, and (ii) there was no complaint or disciplinary action against domestic flight crew members belonging to other domestic flight crew members; (iii) Article 5(1)2 of the Plaintiff’s appearance regulations excessively restrict male flight crew’s personality rights and the right to pursue happiness; and (ii) the above appearance regulations were newly established on January 206, which did not constitute a violation of the above rules of employment to restrict male employees’ personality rights and the right to pursue happiness; and (iii) the Plaintiff did not have been subject to disciplinary action against the Intervenor on the ground that it did not have been subject to disciplinary action against the Plaintiff’s violation of the rules of employment since the Plaintiff did not obtain consent from the labor union or a majority of his employees, and thus, the above provisions were null and void, and (iv) the Intervenor did not have violated the above rules of employment to the extent that it did not have been subject to disciplinary action against the Intervenor, even if it did not constitute a violation of the above provision of disciplinary action against the Intervenor.

2) Determination

A) An employer’s order of work, which belongs to the employer’s right to order work, shall be recognized to the extent deemed necessary for the performance of his/her duties, and an employee has a duty to comply therewith unless there exist special circumstances, such as where the order violates or is deemed to be an abuse of rights, etc. (see Supreme Court Decision 91Nu5020, Mar. 13, 1992). In addition, the order of suspension of work performed in a transportation business entity as seen earlier, if it is based on the need for business management or reasonable grounds for carrying out his/her duties, shall be deemed to constitute a justifiable order (see Supreme Court Decision 96Nu13231, Nov. 25, 197).

B) However, in full view of the following circumstances, it is reasonable to view that the Plaintiff’s suspension of the instant flight to an intervenor is based on reasonable grounds for performing his/her duties and does not constitute an abuse of labor contracts, etc. or an abuse of rights.

(1) First of all, the intervenor asserts that Article 5(1)2 of the Plaintiff’s appearance regulation violates the principle of excessive prohibition and thus, it is unconstitutional. However, since fundamental rights under the Constitution are the first right to protect an individual’s free sphere from an infringement of public authority, the intervenor formed contents of Articles 2, 103, 750, and 751 of the Civil Act, which provide for the general principles of private law, and indirectly affect the judicial relation as a basis for its interpretation (see Supreme Court en banc Decision 2008Da38288, Apr. 22, 2010). Accordingly, the plaintiff’s appearance provision, a private person, is a defensive right to protect the individual’s free sphere from an infringement of public authority, and thus, it is difficult to accept the intervenor’s assertion that it constitutes a violation of the above intervenor’s basic rights, including the Intervenor’s sexual flight crew, as seen below.

(2) Next, the defendant and the intervenor asserted that the establishment of Article 5 (1) 2 of the plaintiff's appearance provision constitutes an unfavorable modification of the rules of employment without the consent of the labor union or majority of workers. Thus, the above provision is null and void. However, as seen earlier, as long as the intervenor's present situation is deemed not a disciplinary action against the defendant's violation of the above appearance provision, but a business order based on the judgment that the intervenor's present situation is inappropriate for carrying out flight affairs, such business order may be conducted without any other ground in the collective agreement or rules of employment (see Supreme Court Decision 94Nu1890 delivered on August 12, 1994). Thus, even if the above provision is null and void, it cannot be viewed that the flight suspension in this case is not justified immediately.

(3) Meanwhile, as seen earlier, the Plaintiff is an airline operating domestic and overseas air transport business, and in the case of an airline, the Plaintiff has much more human and material damage than other means of transport in the event of an aviation accident, and its customers pay and use relatively low costs compared to other means of transport, and thus works as a very important factor in the management of the airline’s service and safety. Accordingly, domestic and foreign airlines ordinarily impose more restrictions on uniforms or appearance than other general enterprises, such as securing the safety of aviation operation and securing the customer’s satisfaction and trust to the extent directly and indirectly necessary to ensure the safety of aviation operation and obtaining the customer’s satisfaction and trust. Accordingly, it is reasonable to deem that the Plaintiff, as an airline, may impose more restrictive restrictions on uniforms or appearance than ordinary enterprises.

(4) In full view of the Plaintiff’s statement Nos. 5 through 9 and 29 (including serial number) and the purport of Nonparty 1’s testimony and pleading, the Plaintiff continued to give instructions to employees, such as uniforms, during several times, to maintain the conditions of uniforms other than uniforms, and the Plaintiff did not raise any objection to the instructions given by the Intervenor for about 10 years, and it is reasonable to view that the Plaintiff had no specific reason to know that there was no need for an intervenor to carry out his/her duties, and that there was no need for an intervenor to carry out his/her duties, and that there was no need for an intervenor to carry out his/her duties, and that there was no need for an intervenor to take measures, such as an intervenor’s new instruction, for the sake of ensuring that there was no need for an intervenor to carry out his/her duties, and that there was no need for an intervenor to carry out his/her duties, and that there was no need for an intervenor to take measures, such as an intervenor’s new instruction, for the first time before and subsequent time.

(5) In addition, comprehensively considering the evidence Nos. 12-1, 25-2, 25-1, 3, and 29-1 through 4 of the evidence Nos. 125, and the testimony and arguments of the non-party 1 and the non-party 2, the plaintiff has the crew of his own company wear a uniform and have them perform their duties. Accordingly, the plaintiff's flight crew members are going to get out of their place of work in the form of uniform. However, the plaintiff's flight crew who worked in the uniform gets out of the bus with a new uniform and reported her uniform to the plaintiff, and it is reasonable to see that the plaintiff's general citizen raised an objection against the plaintiff's employee's behavior at the place where the captain was on duty with a uniform put in the uniform, and that the plaintiff's flight officer's reasonable ground is reasonable to see that the plaintiff's employees' response or reliance on the plaintiff's behavior or reliance on the plaintiff's employees's improper behavior.

(6) Defendant and Intervenor asserted to the effect that there is no need to conduct business solely on the ground that: (i) the flight crew do not directly drink passengers in the course of performing their duties; (ii) a foreign flight crew member or other domestic flight crew member worked in the state of beard; (iii) the Intervenor did not have any sanction but did not raise any customer complaints; and (iv) the Intervenor did not have any problem in operating the aircraft; and (iii) it is difficult to deem that there is no need to conduct business solely on the ground that the Plaintiff’s flight crew member passed beards without amnesty. However, as seen above, it is difficult to determine that the Plaintiff’s flight crew member’s flight crew member could drink or general citizens in the course of their duties; (ii) there is no need to take measures to respect the foreign flight crew member for a broad period; and (iii) there is no possibility that the Intervenor would have any negative effect on the Plaintiff’s flight crew member’s convenience on the ground that the Plaintiff’s flight crew member could not be easily permitted, or that the Plaintiff’s employees did not have any negative influence on the Plaintiff’s flight crew member.

(7) Furthermore, according to the allegations by the Defendant and the Intervenor, the direct disadvantage suffered by the Plaintiff due to the instant flight suspension is entirely not receiving KRW 3,240,827, which is about 30% of the flight guarantee allowance for September 2014. If we reverse this, the Plaintiff’s monthly salary exceeds KRW 10,000,000, and in light of the Plaintiff’s wage level, the Plaintiff did not receive KRW 3,240,827, out of the amount exceeding KRW 10,000 during one month, it cannot be deemed that the Plaintiff’s daily life becomes difficult or difficult due to the instant flight suspension. Therefore, it is difficult to view the Plaintiff’s direct living disadvantage due to the instant flight suspension as being considerably difficult. Moreover, even if the instant flight suspension actually takes disciplinary action, the Defendant and the Intervenor did not abuse personnel discretion in the form of an order to escape disciplinary action, and thus, it cannot be deemed that the Plaintiff abused personnel discretion as a type of disciplinary action, as seen in the collective agreement.

C) Ultimately, the instant suspension of flight violates the labor contract, etc. or does not constitute abuse of rights, and constitutes legitimate order for business suspension as a reasonable ground for business necessity or performance of duties.

C. Sub-committee

Therefore, the review decision of this case, which recognized the suspension of flight of this case as an unfair disposition, should be revoked in an unlawful manner.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is decided as per Disposition.

Judges Yu Jin-jin (Presiding Judge) and Dong-dong