[1] In a case where the rules of employment, etc. stipulate a disciplinary committee in the same number of number of workers and workers, whether an employer can commission a disciplinary committee member without the process of reflecting the opinion of workers (negative with qualification)

[2] The case reversing the judgment of the court below on the ground of misapprehension of legal principles as to deviation from the disciplinary discretion, which held that a taxi driver's paid in lump sum without paying transport income constitutes a ground for dismissal under the rules of employment

[1] If the rules of employment, etc. require the disciplinary committee to be composed of the same number of workers and the same number of employees, this is intended to ensure procedural fairness by commissioning the disciplinary committee members from among the workers and guaranteeing the workers' right to participate in the disciplinary committee, and to check the abuse of the right to participate in the disciplinary action. Therefore, even if the rules of employment do not directly stipulate the qualifications and appointment procedures of the disciplinary committee members, barring special circumstances, such as where the union members represent workers or represent workers' opinions, the employer may not interpret that the employer can arbitrarily commission the disciplinary committee members without reflecting the workers' opinions.

[2] The case reversing the judgment of the court below on the ground that, in the case where a taxi driver did not pay transport income in lump sum when he did not pay transport income, or did not pay transport income for not less than three days, it constitutes grounds for dismissal under the rules of employment, the case reversing the judgment of the court below on the ground that the dismissed driver failed to pay transport income due to difficulties in paying the number of days of loan loan in compensation for damages for traffic accident, other drivers did not pay transport income normally, but paid transport income in lump sum for 2-3 days, and there was no disciplinary action against other drivers on the ground that they did not pay transport income in lump sum, and that the taxi company has paid in good faith if transport income was deposited by the end of the last day regardless of whether it was paid in daily, regardless of whether it was paid in full.

[1] Article 30 of the Labor Standards Act / [2] Article 30 of the Labor Standards Act

[1] Supreme Court Decision 90Da8077 delivered on July 9, 1991 (Gong1991, 2112) / [2] Supreme Court Decision 97Nu18189 delivered on November 10, 1998 (Gong1998Ha, 2875 delivered on May 28, 2002) Supreme Court Decision 2001Du10455 Delivered on May 28, 2002 (Gong2002Ha, 1559), Supreme Court Decision 2001Du8018 delivered on July 8, 2003 (Gong2003Ha, 1722)

Plaintiff (Law Firm citizen, Attorneys Kang Young-chul et al., Counsel for plaintiff-appellant)

LLC LLC (Attorney Park Young-chul et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2005Na100627 decided June 23, 2006

The judgment below is reversed and the case is remanded to Seoul High Court.

1. As to the ground of appeal on disciplinary procedure

A. The judgment of the court below

The court below rejected the defendant's assertion that there was a significant defect in the composition of the disciplinary committee by not being notified in advance or being given an opportunity to explain the grounds for dismissal in advance to the plaintiff, and that there was a significant defect in the composition of the disciplinary committee, based on the defendant's rules of employment not only did the defendant give an opportunity to inform and explain the grounds for dismissal in this case in advance, but also did not provide a procedure for prior notification and giving an opportunity to make a statement. In such a case, even if the disciplinary action was taken without taking such procedure, the effect of the disciplinary action does not affect the defendant's rules of employment. The defendant's rules of employment only provide that "the disciplinary committee is composed of two union members and two union members" with regard to the composition of the disciplinary committee, and there is no provision regarding the qualification or appointment procedure of the disciplinary committee members, so the qualification or appointment procedure of the disciplinary committee members cannot be separately discussed. Thus, the defendant's resolution of dismissal in this case based on the fact that two union members were commissioned by the defendant cannot be viewed as a procedural defect in the composition of the representative director.

B. The judgment of this Court

In light of the records, the court below's determination that the defendant provided an opportunity to inform the plaintiff of the grounds for dismissal of this case in advance is just and there is no error of law such as violation of the rules of evidence or misconception of facts due to insufficient deliberation.

However, it is difficult to accept the court below's decision that there is no procedural defect in the defendant's rules of employment as to the composition of the disciplinary committee as to the organization of the disciplinary committee composed of two disciplinary committee members in the union and the private sector.

According to the records, the defendant's rules of employment provide that "the Disciplinary Committee shall be composed of two workers and workers." The defendant's representative director is the defendant's actual resignation, and the defendant's workplace is the defendant's representative director, the defendant's employee, and the defendant's employee, who is the defendant's worker, and the defendant's employee was commissioned as disciplinary committee members. The collective agreement, rules of employment or disciplinary regulations based on these rules have important meaning as ensuring fair exercise of disciplinary right and promoting the rational operation of the disciplinary system (see Supreme Court Decision 90Da8077 delivered on July 9, 191, etc.). Further, if the rules of employment require that the disciplinary committee be composed of equal number of workers and workers, it is intended to ensure procedural fairness by guaranteeing workers' right to participate in the disciplinary committee from among workers and to check abuse of rights. Thus, the defendant's rules of employment have not been directly provided for the qualification and appointment procedure of disciplinary committee members or to represent the workers' opinions without any special circumstances.

Therefore, the court below should have determined whether there was procedural defect in the composition of the disciplinary committee of this case by examining whether the Lee Jong-si was commissioned as a disciplinary committee member, but whether the Lee Jong-si was represented by workers or represented by the opinions of workers, or whether the defendant representative director was in accordance with the procedures reflecting the opinions of workers in commissioning the members of the disciplinary committee (the records are as follows: the employees of the defendant and Sam-si Tax Corporation held an inaugural general meeting before the dismissal of this case and notified the defendant of the establishment of the trade union; and most workers of the fact that the defendant and Sam-si Tax Co., Ltd. took part in the trade union and took part in the trade union and took part in the trade union negotiations, etc.) before the dismissal of this case. However, the court below should have determined whether there was procedural defect in the composition of the disciplinary committee of this case, on the sole basis of the fact that two members of the Labor Union were commissioned by the defendant representative director, the qualification or appointment procedures of the disciplinary committee of this case cannot be considered as having any procedural defect in the composition of the disciplinary committee.

2. As to the grounds of appeal on the grounds of disciplinary action

A. The judgment of the court below

The court below rejected the plaintiff's assertion that the non-party's dismissal did not constitute grounds for dismissal, and even if the non-party's unpaid taxi earnings did not fall under such grounds, they exceeded the disciplinary discretion due to excessive excessive excess of such grounds. The plaintiff's payment of taxi commissions on April 10, 200 when the plaintiff did not pay taxi commissions on a lump basis constitutes grounds for dismissal under Article 36 subparagraph 6 of the defendant's rules. The plaintiff's failure to pay taxi commissions is difficult to compensate damages caused by traffic accidents caused by the plaintiff's non-party's failure to pay for the same reason. However, the court below rejected the plaintiff's unpaid taxi commissions on March 13, 200, because it is difficult to expect that the non-party's act was not a legitimate reason for the plaintiff's failure to pay taxi commissions on the same day as that of the non-party's transportation engineer's non-party's non-party's non-party's non-party's non-performance of duty to pay the same amount of damages caused by the plaintiff's non-party's labor accident.

B. The judgment of this Court

However, the court below's decision that the dismissal of this case cannot be viewed as a deviation from or abuse of the disciplinary discretion is difficult to accept for the following reasons.

Dismissal shall be justified in cases where there are grounds for an employee’s responsibility to the extent that the employee’s employment relationship cannot be continued by social norms. Whether it is impossible to continue the employee’s employment relationship with the employee should be determined by comprehensively examining various circumstances, including the purpose and nature of the employer’s business, the conditions of the workplace, the status and details of the employee’s duties, the motive and background of the act of misconduct, the impact on the company’s business order, such as the risk of disturbing the corporate deceptive order, and the previous attitude of work (see Supreme Court Decision 2001Du10455 delivered on May 28, 2002).

However, according to the records, the Plaintiff’s commencement of the instant taxi commission on March 15, 2003 did not provide evidence to acknowledge that it was from March 13, 2003, which was before the traffic accident, and rather, the amount of arrears and the number of days in arrears are likely to begin after the above traffic accident, and according to the daily payment account statement of Defendant Company 2002, it was confirmed that the Plaintiff paid the taxi commission to Defendant Company from June 2002. Even if three months were to be considered, the Plaintiff appears to have worked as a fixed passenger weapon from September 2002, and the Defendant sent a demand notice to the unpaid taxi commission of 100,000 won or more, and the due date on demand was less than 100,000 won, and it was difficult to expect that the Plaintiff was paid with the aforementioned daily taxi commission of this case on April 10, 200, and it was also difficult for the Plaintiff to have been paid with the same daily taxi commission of this case by the last day of 2003 weeks.

Nevertheless, the court below determined that the dismissal of this case cannot be deemed to deviate from or abuse the authority of disciplinary discretion due to the appropriateness of disciplinary action. Thus, the court below erred in the misapprehension of facts against the rules of evidence or in the misapprehension of legal principles as to deviation from the authority of disciplinary discretion, which affected the conclusion of the judgment.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Ji-hyung (Presiding Justice)