(영문) 서울행정법원 2009.8.20.선고 2009구합1075 판결

1. The decision made by the National Labor Relations Commission on November 28, 2008 between the Plaintiff and the Intervenor on November 28, 2008 was revoked.

2. Of the costs of lawsuit, the part resulting from the intervention in the lawsuit is borne by the Intervenor joining the Defendant, and the remainder is borne by the Defendant.

Purport of claim

The order is as set forth in the text.

Reasons

1. Details of the decision made by the retrial;

A. The Plaintiff is a company that employs 180 full-time workers and engages in the ○ passenger transport business, and the Intervenor joining the Defendant (hereinafter referred to as the “ Intervenor”) entered the Plaintiff company on November 27, 2002 and served as an urban bus driver at the ○○ business office on April 1, 2008 while serving as an urban bus driver.

B. On June 27, 2008, the Intervenor filed an application for remedy against unfair dismissal with the Gyeonggi Local Labor Committee (2008, 568) on the ground that he/she had been subjected to unfair dismissal from the Plaintiff, but the Gyeonggi Regional Labor Relations Commission dismissed the Intervenor’s application on August 21, 2008 on the ground that the Intervenor’s voluntary declaration of resignation was made by the Intervenor’s voluntary declaration of intention, and that the relationship of employment was terminated by the Plaintiff’s acceptance of the application, and that the Intervenor dismissed the Intervenor’s application for remedy.

C. On October 2, 2008, the intervenor appealed and filed an application for reexamination with the National Labor Relations Commission (No. 2008, 732). On November 28, 2008, the National Labor Relations Commission rendered a decision revoking the initial trial tribunal on the ground that the intervenor's submission of a written resignation constitutes a declaration of intention not to be a genuine intention to resign (hereinafter "the decision on reexamination of this case").

[Ground of recognition] Facts without dispute, entry of Gap 1, 2, 4, and 5 evidence, the purport of the whole pleadings

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

A. The plaintiff's assertion

On April 7, 2008, the intervenor submitted to the plaintiff a resignation letter directly prepared as of April 1, 2008 through ○○○, one’s own type of punishment, and on the same day, ○○○○, the head of the labor team of the plaintiff company, confirmed and accepted the intervenor’s intention to resign by putting the intervenor into a ebbbbbbbbbation, and the relationship between the plaintiff and the intervenor was terminated by the termination of the partnership by the plaintiff, the employer, who is the employer, by accepting the intervenor’s declaration of intention to resign upon the submission of the written resignation.

(b) Facts of recognition;

(1) The plaintiff is operating between March 17, 2008 and March 20, 2008, the "Seoul Metropolitan Government bus operation status" of the plaintiff.

As a result of the self-inspection in preparation for the "OO inspection plan", 9 persons, including participants, including participants, OO, OO, OO, OO, O,O, O,O,O, OO,O,O, andOO) are confirmed not to wear or not to conduct guidance broadcasting.

(2) Accordingly, on March 28, 2008, the Plaintiff’s representative director ○○○○ had nine interview including the Intervenor. After the interview, four of the said nine persons (○○○, ○○, ○○, ○○○, ○○○) presented a resignation notice on the ground of personal circumstances on March 29, 2008. Five (5) persons, including the Intervenor, who did not submit a resignation notice (including the Intervenor, ○○, ○○, ○○, ○○○, ○○○○, ○○○, ○○○○) were forced to submit a resignation notice for four (4) days following the same day on the ground of non-performance of instructions, including the Plaintiff’s continuous resignation, and the Plaintiff did not have been forced to resign by five (4) days following the second day on March 28, 2008 to March 31, 2008.

(3) On April 1, 2008, the Intervenor was at work and parked on the part of April 1, 2008, and the vehicle left a parking place, resulting in an accident of collision with the three deputy columns, and the Plaintiff suspended the Intervenor on the part of the Intervenor from April 2, 2008.

(4) On April 2, 2008, ○○○○ who was serving as a full-time executive member of the Plaintiff Company’s trade union, was aware that the Intervenor would resign from the Intervenor on April 2, 2008. On April 3, 2008, ○○○ was informed ○○○, a labor team leader, of this company. On April 5, 2008, 2008, ○○○○ visited the Intervenor’s house to specifically express the issue of his bus operation or resignation: (a) around 00: (b) around 00, ○○ visited the Intervenor’s house, and (c) on April 1, 2008, the Intervenor directly accepted the Intervenor’s resignation and submitted it to ○○○○○○○ on April 27, 2008.

(5) In the course of submitting the Intervenor’s resignation, the ○○○ requested ○○ to accept the resignation in favor of the Intervenor’s calculation of the Intervenor’s retirement allowance on April 1, 2008, and that the administrative disposition related to the resignation should not be at issue with the head of the financial institution’s loan.

(6) On April 7, 2008, 200: around 36, 200: (a) around 36, the ○○○ knew that the Intervenor’s resignation was submitted by OO, and around April 8, 2008, on the following day: (b) around 00: (c) on April 8, 2008, the date of retirement was approved by the representative director of the board of directors on April 1, 2008 on the written resignation of the Intervenor. Furthermore, the ○○○○ submitted the written resignation (○○, ○○, ○○, ○○, ○○, ○○, ○○, ○○○○) on the four above persons who were submitted the written resignation before, but on April 8, 2008, at the request of the Intervenor, the report on the loss of the insured status on the written resignation.

Accordingly, after hearing the intervenor's statement that the issue of financing right loan was resolved, on April 16, 2008, the intervenor reported the loss of insured status for employment.

(7) Meanwhile, on April 3008, the intervenor found ○○○○, which operated a dump truck transport with ○○○○○’s friendship and dump truck, and was working for a dump truck on April 22, 2008 and retired on or before the 28th of the same month (the intervenor stated that he/she was retired from the Plaintiff’s company on April 1, 2008 on his/her own as at the time he/she entered the said dump truck), received KRW 16,059,702 from the Plaintiff on April 30, 208, and received KRW 16,059,70 from the Plaintiff on June 27, 2008, and received KRW 60 from the labor union on June 27, 2008, respectively.

[Ground of recognition] Facts without dispute, Gap 3, 6-24, 28, 34, 36, 37, 39 evidence, Eul 1 and 2 evidence (including each of the above mentioned numbers), witness ○○○, and witness ○○, and the purport of the whole pleadings.

C. Determination

(1) The employer has an employee who has no intention to resign to prepare and ship out a written resignation without any choice but to terminate an employment contract by taking the form of so-called dismissal from office to accept it, and thus, the act of acceptance is null and void due to an expression of intent not submitted by the employee, etc., and thus, the employer’s act of acceptance is deemed as dismissal to substantially terminate the employment contract relations between the employer and the employee upon acceptance of the employee’s unilateral intent. Thus, in such a case, the employer’s notice of termination of the employment contract relations with the employee is merely a notice of concept and cannot be deemed as dismissal under the Labor Standards Act (see, e.g., Supreme Court Decision 95Nu765, Jul. 30, 1996). In addition, it cannot be said that the employee’s expression of intent in an expression of intention not to mention a specific expression of intent, but to be a genuine expression of intent, and thus, it cannot be said that the employee did not have any effect at the time of 90Mo5, supra.

(2) In the case of this case, the following circumstances revealed by the facts of recognition as seen earlier are added to the Intervenor’s resignation, and the preparation of the Intervenor’s resignation is made by voluntary declaration of intention, not by intention but by voluntary declaration of intention, and the submission of a resignation by ○○○ may also be deemed to have been made in advance by the Intervenor, and thus, the labor contract relationship between the Plaintiff and the Intervenor is determined to have been terminated by agreement.

(A) According to the Intervenor’s assertion, the Intervenor prepared and delivered a written resignation to ○○, a type of ○○, to the effect that the Plaintiff’s custody was caused, and the Intervenor did not take any active measures, such as return of the written resignation, even after having received a telephone contact from the head of the Plaintiff’s labor team at ○○○○, in which the Intervenor’s resignation was submitted.

(B) In light of the fact that each testimony of ○○○, ○○, and ○○○○, which are consistent with the fact that the above written resignation was drawn up by the coercion of ○○○○○○○○, is difficult to believe and there is no other evidence to acknowledge it, and that only four of nine persons, who met with the representative director, were retired and the rest of the nine persons who met with the representative director, continued to work for the Plaintiff Company, cannot be deemed to have been a situation where the Intervenor would not have to submit the written resignation by coercion of the company’s side (the ○○○○, which was later submitted, did not have any unfair treatment to compel the company to resign).

(C) After the submission and acceptance of a letter of resignation, the intervenor was aware of other jobs, prepared a resume stating that he retired from the Plaintiff company and worked for other bus companies, and received retirement allowances from the Plaintiff without any particular objection, and received the retirement allowances from the Plaintiff. In order to receive the transfer money from the labor union, the intervenor visited the labor union office several times in order to receive the transfer money from the labor union, and received the transfer money at the end of demanding by content-certified mail.

(3) Sub-decisions

Therefore, the decision of the retrial in this case, which held that the plaintiff accepted the written resignation of the intervenor, was unlawful.

3. Conclusion

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