Plaintiff

The Chairman of the National Labor Relations Commission

July 10, 2008

1. On November 15, 2007, the decision made by the Defendant on November 15, 2007 between the Plaintiff and the Social Welfare Foundation of the Buddhist Cho Jae-sung and the Social Welfare Foundation of the Republic of Korea is revoked with respect to the case of the application for the remedy for unfair dismissal.

2. The plaintiff's remaining claims are dismissed.

3. One-half of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

On November 15, 2007, the decision made by the defendant on November 15, 2007 between the plaintiff and the non-affiliated social welfare foundation and the non-affiliated social welfare foundation is revoked, and the decision made by the defendant on November 15, 2007 was revoked.

1. Status of parties and circumstances leading to the decision on retrial;

On August 7, 2006, the date of disciplinary action against the union members in the position of the union members of ○○ City Social Welfare Center with disabilities and the date of disciplinary action against the union members in the position of the intervenor on August 23, 2007 (hereinafter referred to as the "instant disciplinary action") on August 27, 2007, including the contents of the business of 43 regular workers at the head office of Jongno-gu Seoul Metropolitan Government ○○○ Dong (hereinafter referred to as the "number 1 omitted) located in the main office, including the business of establishing and operating the social welfare facilities, etc. of which the number of regular workers is 43, the fact that the number of the union members in the position of the union members in the ○○ City Social Welfare Center with disabilities was 307, 307, 207, 207, 307, 307, 207, 15, 207, 207, 2017.

2. Whether the decision on retrial is lawful.

A. The plaintiff's assertion

(1) In light of the following circumstances, the instant disciplinary action is unreasonable.

(A) The instant disciplinary action was decided by the disciplinary committee where only four disciplinary committee members were present. This is unfair and invalid as it violates the personnel regulations of the welfare center for disabled persons at ○○ City operated by the Social Welfare Foundation for the Disabled Persons of the Disabled (hereinafter “instant welfare center”) which provides that the disciplinary committee shall be composed of five to seven disciplinary committee members at the time of the disciplinary action.

(B) When the instant welfare center was selected in the Gyeonggi-do rehabilitation program, it dispatched the Plaintiff working at a protected workplace without any relation to the said program due to the lack of personnel to the department in charge. In light of the fact that the Plaintiff agreed to restrict the duties in charge at the time of the employment contract as a social worker, and that there was no prior consultation regarding the above dispatch, the above dispatch order constitutes an illegal work order. Accordingly, the act of failing to comply with the above dispatch order and failing to comply with the order to submit a notice at the time is not a cause for disciplinary action.

(C) In addition to the plaintiff, the non-party 1 who belongs to the protective workplace was dissatisfied with the dispatch order, but the disciplinary action of this case was against the plaintiff without any particular disciplinary measure against the non-party 1, and was unlawful.

(2) The instant disciplinary action is an unfair labor practice on the ground that the Plaintiff is an executive officer actively involved in the trade union activities of the instant welfare center, and constitutes an unfair labor practice on the ground that the Plaintiff is an employee.

(b) the relevant regulations;

Constitution

Article 19

Every citizen shall enjoy the freedom of conscience.

Operational Regulations of the Welfare Center of this case

[Organizational Provisions]

Article 6 (Sharing of Duties)

The division of duties of each team shall be as specified in attached Table 3: Provided, That where the head of the agency deems it necessary for the efficient performance of duties according to changes in the situation, he/she may adjust part thereof.

annexed Table 3)

Vocational rehabilitation team: ① a plan and evaluation of allocated duties, ② a vocational counseling and evaluation of work, ③ a vocational adaptation training, ④ a support employment for disabled persons, ⑤ a management of the job offering and job seeking bank for disabled persons, 6 a personal and social adaptation training, 7 post management of employed

Protective workplaces: (1) Protection and employment for disabled persons, (2) Vocational counseling and evaluation of disabled persons, (3) vocational adaptation training, (4) Employment assistance and post management, (5) promotion of outing work, and

【Provisions of Service】

Article 4 (Duty of Good Faith)

The welfare center shall work for employees pursuant to this Regulation, and the employees shall have the duty to faithfully comply with the legitimate orders for the duties prescribed in the provisions of this Ordinance.

【Personnel Regulations】

Article 6 (Composition of Personnel Committee)

(1) A personnel committee may be established in order to ensure the proper personnel management of the personnel of a welfare center.

(2) The Personnel Committee shall have five to seven members, including a chairperson.

(3) The chairperson of the personnel management committee shall be the chief executive officer, and the personnel management committee shall be commissioned by the chief executive officer and at least Grade III executive officers.

(4) A person designated by the representative director of a corporation shall act on behalf of the chairperson.

Article 7 (Matters for Deliberation)

The Personnel Committee shall deliberate on the following matters:

1. Matters concerning the reward and punishment of employees;

Article 8 (Meetings of Personnel Committee)

(1) The chairperson shall convene and preside over meetings.

(2) Meetings shall be closed to the public: Provided, That where deemed necessary, the relevant persons may be present and state their opinions or opportunities for explanation.

(3) The Committee shall pass a resolution with the consent of a majority of the personnel members present and with the consent of a majority of all members.

Article 45 (Disciplinary Action)

When an employee commits an error, he/she may take disciplinary action after deliberation by the personnel committee.

Article 46 (Types and Effects of Disciplinary Actions)

Disciplinary action shall be classified into reprimand, salary reduction, suspension from office, dismissal, etc.

1. Reprimand: He/she shall submit a written statement of time, and admonish a person for his/her previous offense.

Article 47 (Exception to Disciplinary Action)

(1) If an employee commits an insignificant act that may violate the maintenance of order of the organization without any grounds for disciplinary action, the head of the department may pay attention to the employee concerned along with the last day so that he/she may correct the pointed out and give an opportunity to reflect the act.

(2) When a caution due to the same act is at least three times a year, or the total recovery of caution reaches five times a year, the head of the relevant department shall report such fact and have it referred to disciplinary action.

Article 48 (Grounds for Disciplinary Action)

(1) Any employee who has no justifiable ground or has intentionally failed to comply with the regulations of a welfare center may be disciplined.

4. When an aircrew resists or is dissatisfied with an official order of his superior without any justifiable reason;

(c) Fact of recognition;

(1) On August 7, 2006, the Plaintiff (the name at the time of concluding the labor contract was Nonparty 2, but was later named as “the Plaintiff”) entered into a labor contract with the instant welfare center as follows.

(a) Class and position: class 1 of class IV (social workers);

(B) The term of employment contract: from August 7, 2006 to August 6, 2007

(C) Work place: The instant welfare center: Provided, That the instant welfare center may change the Plaintiff’s occupation or work place as necessary for its operation, and the Plaintiff must comply with the order of the said work.

(2) On February 27, 2007, the instant welfare center was selected from Gyeonggi-do as a person eligible for “A farming learning hall operation program for the purpose of leisure and vocational rehabilitation of mentally handicapped persons and persons with developmental disabilities in the field of vocational rehabilitation projects” (hereinafter “Do Rehabilitation Program”). At the time, the number of vocational rehabilitation team personnel was only two.

(3) The secretary general of the instant welfare center consulted with the head of the protected workplace, etc. to supplement the number of workers necessary for the operation of the instant rehabilitation program, but failed to smoothly promote the work. On March 16, 2007, the instant welfare center ordered the Plaintiff, who is a worker belonging to a protected workplace with similar tasks to the vocational rehabilitation team and whose work amount is relatively small, to be seconded at the vocational rehabilitation team twice a week until the completion of the relevant rehabilitation program. The Gyeonggi-do rehabilitation program site, which is the place of the vocational rehabilitation team, is located at a place less than 3 to 4 km away from the instant welfare center. The Plaintiff, after having worked as a welfare center, was allowed to move to the farming learning site to the welfare center, and other working conditions, such as departure from the workplace, retirement hours, wages, working hours, etc., are the same as those existing.

(4) However, on March 30, 2007, the Plaintiff refused to comply with the above dispatch order, and the instant welfare center, instead of the Plaintiff, adjusts its work with the content of dispatching Nonparty 3, a worker belonging to the protected workplace, to the vocational rehabilitation team. On April 3, 2007, the Plaintiff ordered the Plaintiff to submit a notice of call by April 5, 2007, on the ground that the Plaintiff did not comply with the dispatch order without justifiable grounds.

(5) However, on April 207, the Plaintiff refused to comply with the submission order of the above end-up statement, and the instant welfare center held a personnel committee on April 20, 2007, and decided on the reprimand against the Plaintiff on the ground that the Plaintiff failed to comply with the dispatch order and failed to comply with the order for submission of the end-up statement, and notified the Plaintiff on April 23, 2007.

(6) At the time, the personnel committee, as the head of the instant welfare center, attended four members of the personnel committee, including Nonparty 4, who are the chairperson of the personnel committee, and passed a resolution on the instant disciplinary action with the consent of all members. In addition, the Plaintiff appeared in the said personnel committee and explained that the instant disciplinary action is unreasonable.

(7) On April 30, 2007, the instant welfare center changed Nonparty 5, instead of Nonparty 3, to the person in charge of dispatch, on the grounds that the case management of the protected workplace and the outsourcing work is anticipated to be interrupted by Nonparty 3.

(8) Although the vocational rehabilitation team and the protected workplace have a separate workplace registration certificate, all of them are subject to the operating regulations of the instant welfare center, and the representative is the same as the head of the instant welfare center, and the amount of benefits shall be preserved and paid by the instant welfare center in certain parts.

[Reasons for Recognition] Facts without dispute, entry of Eul 3, 5 and 11 (including each number), the purport of the whole pleadings

D. Determination

(1) Whether the instant disciplinary action is justifiable

(A) Whether the procedural provisions are violated

In the personnel regulations of the instant welfare center, the personnel committee shall be composed of 5 through 7 members including the chairperson. However, on the other hand, the chairperson of the personnel committee shall be the head of the instant welfare center, and the members shall be commissioned by the head of the personnel committee, and the members shall not guarantee the participation of labor unions or workers, and the quorum of the personnel committee shall be determined with the consent of the majority of the personnel committee members. In the instant disciplinary action, four members shall attend and agree to the resolution of the disciplinary committee. The instant welfare center is a small-scale workplace where the total number of workers is only 43, and the Plaintiff shall have an opportunity to make a vindication. In light of the fact that the instant disciplinary action violates the personnel regulations on the number of members of the personnel committee, but there is no additional disadvantage to the Plaintiff, and thus, it is difficult to deem the instant disciplinary action to be null and void due to the violation of the above minor procedure.

(B) Whether grounds for disciplinary action exist

(i) Failure to comply with the dispatch order;

In principle, the transfer or the transfer of a worker belongs to the authority of the employer who is the person having the personnel authority, and thus, it cannot be deemed null and void unless there are special circumstances such as violation of the Labor Standards Act, etc., or abuse of rights. Whether the transfer or the transfer or the transfer or the transfer or the transfer constitutes abuse of rights shall be determined by comprehensively taking into account whether the worker conducted the procedure required under the good faith principle in the process of the transfer or the transfer or the transfer or the like (see Supreme Court Decision 99Du2963, Apr. 11, 200, etc.) and whether the worker was faithfully consulted with the employer in the course of the transfer or the like (see Supreme Court Decision 99Du2963, Apr. 11, 200). However, the issue of whether the transfer or the transfer or the like constitutes abuse of rights can be deemed as one element of determining whether it is a legitimate exercise of the personnel authority. However, it cannot be deemed that the transfer or the like constitutes abuse of rights (see, e.g., Supreme Court Decision 97Da165172, Jul.

Since the vocational rehabilitation team designated as the protection workplace and the dispatched department of the Plaintiff are the same as its representative and the applicable operating regulations, the above dispatch order constitutes an order to change the contents and place of the work within the same workplace. Therefore, in light of the above legal principles, the above dispatch order is a health worker with regard to whether the dispatch order of this case is legitimate business order, and (1) the labor contract entered into between the Plaintiff and the welfare center of this case does not restrict its duties, but it stipulates that the place of work shall be a welfare center, and the type of work or the place of work may be changed according to operational needs. In light of the proviso of Article 6 of the Regulations on the Organization of the Welfare Center of this case, if the head of the agency deems it necessary, he/she can partially adjust the division of duties. In light of the above, it does not seem that there is an agreement between the Plaintiff and the welfare center of this case to specify the contents and type of work or the place of work at the time of the employment contract between the Plaintiff and the welfare center of this case.

Therefore, the Plaintiff’s failure to comply with the dispatch order, which is a legitimate order, constitutes grounds for disciplinary action, as it violates Article 48(1)4 of the Personnel Management Regulations and Article 4 of the Service Regulations of the instant welfare center.

2) Failure to comply with an order to submit a horse

If an employer requires a worker who has committed an accident or misconduct in a labor relationship to submit a statement of the time or requires the worker subject to a disciplinary action to submit the statement of the time, the act of failing to submit the statement of the time itself constitutes grounds for disciplinary action (see Supreme Court Decision 90Da12991, Dec. 24, 191, etc.). However, there is a view that the act of failing to submit the statement of the time itself can be a ground for disciplinary action because the worker refuses to comply with a legitimate order issued by the employer (see Supreme Court Decision 90Da12991, Dec. 24, 191, etc.). However, the time statement means a statement of reasons why the worker who is involved in the accident or misconduct submits a statement of the reason why he/she submits the statement of the reason why he/she submits the statement of the reason and the reason why the person who caused the accident submits the statement of the time for the purpose of the

First of all, if the employer’s order to submit a report simply stating the circumstances of the case, the employee is obligated to cooperate in the employer’s investigation in the event of an accident related to employment as a duty under the good faith principle attached to the employment contract, and thus, the order to submit the report is a legitimate order to submit the report. Therefore, the failure to submit the report constitutes grounds for disciplinary action.

However, if the purport of an order to submit a statement of time is not only to simply report the situation of the case, but also to prepare and submit a letter of apology or rebuttal containing the content of his/her wrong and intentional act regarding an accident occurring in labor relations, this is an unlawful order as it infringes on the freedom of conscience guaranteed by our Constitution, that is, the freedom of conscience not to act against conscience, and thus, it is an illegal order. Thus, in a case where a worker voluntarily submits a statement of time containing the contents of his/her anti-influence and the crime of death, it may be deemed that the person has shown the situation and can be considered as a cause for the mitigation of disciplinary action. However, it is not allowed to determine the reason for the independent reason for disciplinary action or the aggravation of disciplinary action because he/she fails to comply

However, in a specific case, whether the phrase of time refers to a simple statement, or includes the meaning of a crime, or reflector, should be determined by comprehensively examining all the circumstances such as the specific contents and degree of the accident or misconduct that caused the submission of the letter of time, the circumstances leading the submission of the letter of time to the relevant employee, and the details of other duties or disciplinary measures at the time, etc.

In light of the above legal principles, it is difficult to see that the end of this case does not mean that the plaintiff simply prepared and submitted a document containing the reason why the plaintiff did not comply with the above dispatch order, and furthermore, it is difficult to see that the present end of this case should be deemed that the plaintiff simply prepared and submitted a document containing the violation of the above dispatch order and the violation of the order of organization's organization's work order, because the plaintiff did not comply with the dispatch order, and the reason for the investigation was already completed, and that the court ordered the submission of the end of the time when taking caution as stipulated in Article 47 of the Personnel Management Regulations, and that Article 47 of the above Personnel Management Rules provides that the time limit may be set up for the expression "incompetiity opportunity".

If so, the submission order of the end of the present case requires the plaintiff to submit a kind of reflective statement against the plaintiff claiming that the above dispatch order did not comply with the above order, which constitutes an unlawful order that infringes on the freedom of conscience guaranteed by the Constitution by coercioning an act contrary to conscience, and thus, it is unlawful to regard the disciplinary action of this case as an independent ground for disciplinary action that the above submission order was not complied with.

(C) Whether the determination of disciplinary action is reasonable or not

Whether to take a disciplinary measure against a person subject to disciplinary action for which the disciplinary measure is recognized is at the discretion of the person having authority to take the disciplinary measure. In this case, not only the contents and nature of the disciplinary measure, but also past records, other than work performance, and misconduct committed after the disciplinary measure occurs, may be taken into account as data for choice of the kind of disciplinary measure. However, only where the selected disciplinary measure is recognized to have been abused by social norms as it considerably lacks validity (see Supreme Court Decision 97Nu2528, 2535 delivered on September 3, 199, etc.).

The disciplinary action is legitimate if it is sufficient to recognize the validity of the disciplinary action only with the remaining grounds for the disciplinary action which are not recognized partially. However, as seen above, the disciplinary action of this case is deemed legitimate, but the disciplinary action of this case is deemed to be abuse of the authority to take disciplinary action, considering the following circumstances: (i) the welfare center of this case decided that the plaintiff did not comply with the dispatch order, which is a legitimate order, but did not reach the grounds for disciplinary action; and (ii) the plaintiff did not comply with the above order to submit a statement of time; and (iii) the plaintiff did not comply with the above order to submit a statement of time; and (iv) there was no other evidence as to the change of circumstances that may affect the plaintiff's disciplinary action as well as the above order to submit a statement of time; and (iii) the disciplinary action of this case is deemed to have exceeded the scope of the authority to take disciplinary action of this case, even if it exceeds the scope of the authority to take the disciplinary action of this case.

(D) Sub-committee

Therefore, the disciplinary action of this case was unlawful since it abused the authority of disciplinary discretion by making it an independent disciplinary cause that did not comply with an order to submit a report.

(2) Whether the act constitutes unfair labor practice

Whether an employer’s act constitutes an unfair labor practice prescribed by the Trade Union and Labor Relations Adjustment Act shall be comprehensively examined and determined by comprehensively examining all the circumstances to presume the existence of an employer’s intent to engage in unfair labor practice. Since the burden of proving unfair labor practice is against an employee or a trade union who asserts it, even after conducting a necessary deliberation, where it is unclear whether an employer intended to engage in unfair labor practice exists and it is impossible to determine the existence thereof, the risks or disadvantages arising therefrom should be borne by the employee or the trade union that made such assertion. In this regard, even though an employer took unfavorable measures, such as disciplinary action, dismissal, etc. against an employee, but it was revealed that there was a justifiable reason as a result of the examination, it cannot be readily concluded that such unfavorable measure was taken by the employer against the intent to engage in unfair labor practice (see Supreme Court Decision 2005Du4120, Nov. 15, 2007).

As to the instant case, the Plaintiff violated the dispatch order, which is a legitimate business order, and thus there are some justifiable grounds for disciplinary action. ② The instant welfare officer erred in issuing an order to submit a statement of time that did not infringe the Plaintiff’s freedom of conscience and thus refusing to comply with such order. However, it appears that the instant disciplinary action was derived from the existing wrong practice that requested submission of a letter of time as a crime of imprudent and death in the event of an accident or misconduct in a labor relationship, and it is difficult to readily conclude that the instant disciplinary action was committed based on the intent of the instant welfare officer’s unfair labor practice. In full view of the above, the evidence submitted by the Plaintiff alone is insufficient to recognize that the instant disciplinary action constituted unfair labor practice, such as the Plaintiff’s disadvantageous disposition against the Plaintiff’s trade union activities or the act of intervention in control to exercise influence

(3) Sub-decisions

Therefore, given that the instant disciplinary action is unlawful, but does not constitute unfair labor practices, the part on relief from unfair dismissal in the decision on reexamination of the instant case is unlawful, and the part on relief from unfair labor practices is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is accepted within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Jeong Jong-young (Presiding Judge)