If an action of dismissal and a disciplinary action are separately provided for in the rules of employment, but no procedure provision exists as to an action of dismissal and the same ground for such dismissal is provided for in the same ground for disciplinary action, whether the employer should undergo general disciplinary proceedings in making the action of dismissal (negative)

If an action of dismissal and a disciplinary action are separately stipulated in the rules of employment, but no procedure provision exists as to an action of dismissal and the same ground for dismissal is prescribed as the same as that of the general disciplinary action, it cannot be said that the employer should undergo the general disciplinary procedure in making the action of dismissal. This does not change if the ground for dismissal actually appeared as the ground for disciplinary action.

Articles 27(1) (see current Article 30(1)) and 27-3(2) (see current Article 33(2)) of the former Labor Standards Act (amended by Act No. 5309, Mar. 13, 1997)

Supreme Court Decision 92Nu12452 delivered on May 25, 1993 (Gong1993Ha, 1893), Supreme Court Decision 92Da54210 delivered on October 26, 1993 (Gong1993Ha, 3160), Supreme Court Decision 94Da42082 delivered on March 24, 1995 (Gong1995Sang, 1722), Supreme Court Decision 94Da35350 delivered on June 30, 1995 (Gong195Ha, 2547), Supreme Court Decision 95Nu17571 delivered on November 26, 196 (Gong111)

Plaintiff 1 and 3 others (Attorney Lee Jae-soo, Counsel for the plaintiff-appellant)

The Chairman of the National Labor Relations Commission

Defendant Intervenor’s Intervenor’s Social Welfare Foundation (Attorney Lee Ho-hoon, Counsel for defendant’s intervenor)

Seoul High Court Decision 97Gu27505 delivered on February 4, 1999

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

The grounds of appeal by the defendant litigation performer and the grounds of appeal by the defendant's supplementary intervenor (hereinafter referred to as "participating") are also examined as follows.

1. According to the reasoning of the judgment below, the court below acknowledged that the intervenor's new operation rules, which had been in force at the time of the issuance of the plaintiff's ex officio dismissal, are different from the former operation rules in the chapter on "the former personnel service" separately from the former operation rules, and that the plaintiff's grounds for ex officio dismissal against the plaintiffs fall under "where it is deemed that the plaintiff's ability or knowledge is significantly inappropriate in performing his duties" as alleged by the plaintiff at the original trial (attached Form 2 / [Attachment 2], and therefore, the grounds for ex officio dismissal fall under the grounds for disciplinary action, so long as the facts of such suspicion are not obvious enough to the extent that ex officio dismissal is inevitable, even if the defendant does not have the opportunity to defend the plaintiff, the court below determined that ex officio dismissal disposition was conducted through the procedures for disciplinary action prescribed by the new operation rules (Article 28 (b)), i.e., providing the plaintiffs an opportunity to make statements, and that the plaintiff's disposition is unlawful without following the plaintiff's legitimate grounds for ex officio dismissal procedure (excluding ex officio dismissal).

2. However, if an action of dismissal and a disciplinary action are separately stipulated in the rules of employment, etc., but no procedure provision exists as to an action of dismissal and the same grounds for such dismissal are provided, it cannot be said that the employer should undergo general disciplinary proceedings in making an action of dismissal (see, e.g., Supreme Court Decision 94Da35350, Jun. 30, 1995). This does not change even in cases where the grounds for dismissal are actually seen as grounds for disciplinary action (see, e.g., Supreme Court Decision 94Da42082, Mar. 24, 1995).

In light of the records, Article 28(a) of the Rules of Employment provides that "when a person violates or neglects his/her duties with respect to grounds for disciplinary action, thereby hindering the operation of the facility or causing property damage to the facility, such as abuse of or stuffing the original life, etc., when a person causes harm to the reputation of the facility through a fighting, etc. between workers, due to an unexpected act," and Article 28(b) provides that "when a disciplinary action is taken, sufficient evidence shall be required, and the opportunity of the person subject to disciplinary action shall be given," and Article 29 provides that "when a person violates or neglects his/her duties with respect to grounds for disciplinary action," Article 30 separately provides that "when a person is unable to perform his/her duties due to a physical or mental disorder, his/her ability or ability to perform his/her duties due to an ex officio dismissal," the above provision provides that "when an ex officio dismissal is seriously improper" and the above provision does not provide that the grounds for disciplinary action is clearly different from the above.

Nevertheless, the judgment of the court below that the plaintiff's ex officio dismissal disposition against the plaintiffs is unlawful because it did not follow the procedure of disciplinary action, i.e., providing the plaintiffs with an opportunity to make statements, is erroneous in the misapprehension of the intervenor's operating rules or in the misapprehension of the legal principles as to ex officio dismissal disposition, which affected the conclusion of the judgment. Thus, the defendant and the intervenor's ground

3. Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench

Justices Lee Jin-hee (Presiding Justice)