Validity of the collective agreement and rules of employment on grounds of dismissal;

The corporate order is unnecessary for the smooth existence and business operation of a company. Therefore, an employer may set the rules of employment governing the violation of corporate order by workers, unless it is deemed necessary and reasonable to establish and maintain such corporate order, and it is originally authorized to set the rules of employment to the extent that it does not go against the related Acts and subordinate statutes such as the Labor Standards Act, and it is stipulated in the rules of employment as grounds for disciplinary action such as dismissal in respect of the violation of corporate order of workers other than the violation of corporate order which is governed by the collective agreement, since the rules of employment fall under the original authority of the employer, in the collective agreement provides that "any dismissal shall be governed by the collective agreement and shall not be made by the rules of employment" in the rules of employment, or that "workers shall not be dismissed for reasons other than those provided for in the collective agreement" shall not be subject to dismissal, unless the rules of employment explicitly stipulate that the grounds for dismissal and procedures for dismissal shall be governed by the collective agreement, or if the same grounds for dismissal or disciplinary procedure conflict with each other in the collective agreement, it may dismiss workers based on the grounds for dismissal.

Articles 27(1) and 97(1) of the Labor Standards Act, Article 36(1) of the Trade Union Act

[Plaintiff, Appellant] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Park Jong-soo and 1 other, Counsel for plaintiff-appellant-appellant-appellant-appellant-appellant-appellant-appellant-appellant-Appellee-Appellee-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellee-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellee-Appellee-Appellee-Appellant-Appellee-Appellee-Appellee-Appellee-Appellant-Appellee-Appellee-Appellee-Appellant-Appellee-Appellee-Appellee-Appellant-Appellee-Appellee-Appellant-Appellee-Appellee-Appellee-Appellant-Appellee-Appellee-Appellee

Plaintiff

Law Firm Jin-si, Attorney Kim Jong-sik, Counsel for defendant-appellant

Seoul High Court Decision 92Na40992 delivered on April 27, 1993

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

We examine the grounds of appeal.

1. On the first ground for appeal

According to the reasoning of the judgment below, the court below cited the reasoning of the judgment of the court of first instance which recognized that Article 52 of the collective agreement of the defendant company lists 10 specific grounds for dismissal and Article 53 explicitly lists 8 grounds for dismissal as grounds for dismissal, and compared with the above provisions concerning grounds for dismissal under Article 49 of the Rules of Employment (14 November 1, 1985) of the defendant company which was in force at the time of the preparation of the collective agreement, Articles 52 and 53 of the above collective agreement accept most of the grounds for dismissal under Article 49 of the above Rules of Employment and divide them into the grounds for dismissal under Article 52 of the collective agreement into the grounds for disciplinary action under Article 53 of the above Rules of Employment. Article 49 (5) of the above Rules of Employment stipulates that the grounds for dismissal under Article 52 of the above Rules of Employment are more specific than the grounds for dismissal (Article 52 subparagraph 8 of the above Rules of Employment stipulates that disciplinary action against the plaintiff company which did not constitute grounds for dismissal under Article 54 of the above provision for dismissal.

However, corporate order is unnecessary for the smooth existence and operation of the company, and as long as it is deemed necessary and reasonable for the establishment and maintenance of corporate order, an employer may establish rules of employment governing the violation of corporate order within the scope not contrary to the related Acts and subordinate statutes such as the Labor Standards Act (see Article 94 subparagraph 10 of the Labor Standards Act). As to the violation of corporate order by workers, other than those violating the collective agreement, the rules of employment (including the disciplinary rules, personnel regulations, and service regulations with the nature of the rules of employment) shall be deemed to fall under the original authority of the employer, and therefore, in the collective agreement, the collective agreement provides that "any dismissal shall be based on the collective agreement with respect to dismissal, and shall not be made by the rules of employment" or "no dismissal shall be made for any reason other than those stipulated in the collective agreement", the employer shall be entitled to separate the grounds for dismissal and dismissal from the rules of employment and shall not be subject to new dismissal from the rules of employment unless it explicitly provides for the procedures for dismissal under the collective agreement or conflicts with the same disciplinary grounds and rules under the collective agreement.

Article 42(2) of the collective agreement provides that “The standards prescribed in this agreement shall take precedence over the rules of employment and provisions of the company, which fall short of or are null and void in individual labor contracts, shall conform to the standards of this Convention,” while Article 3 of the collective agreement provides that “The rules of employment shall take precedence over the dismissal of workers, and the part which is null and void shall be subject to the standards of this Convention, which shall not be contrary to the collective agreement applicable to the workplace concerned,” but this provision provides that the rules of employment in violation of the standards of employment as prescribed in Article 97(1) of the Labor Standards Act or Article 36(1) of the same Act shall be null and void if the provisions of the collective agreement and the rules of employment concerning the same disciplinary cause or disciplinary procedure conflict with each other, the provisions of the collective agreement shall apply preferentially to the dismissal of workers, and it shall not be deemed that all personnel affairs shall be based only on the grounds prescribed in the collective agreement, such as dismissal of workers, etc., and it shall not be deemed that there are errors in the rules of employment as stated in the collective agreement as grounds for dismissal as one of the Plaintiff at the same time.

In addition, the Plaintiff’s act of failing to comply with the order on board on October 3, 1990, and the Plaintiff’s act of failing to charge L.P. gas on January 6, 1991 when she puts the taxi into the vehicle height with the taxi on January 6, 191, is apparent that it constitutes the ground for dismissal under Article 49(4) of the above Rules of Employment as “the time of appeal against the order on duty” but Article 53(1) of the above collective agreement provides for the same matters as “the time of appeal against the order on duty” on the ground that “a person who fails to comply with legitimate instructions” is only a ground for disciplinary action other than the dismissal. Thus, the above reasons can not be independently used as the ground for dismissal, but in other cases, it is possible to consider it as the ground for dismissal by taking into account

Therefore, it is reasonable to discuss this issue.

2. On the second ground for appeal

According to the reasoning of the judgment of the court below, it is clear that the court below rejected the defendant's assertion as to the embezzlement of the plaintiff's revenue and there is no other evidence to acknowledge it. Thus, the court below's theory that the court below did not make a decision on this point is without merit.

3. Therefore, the judgment of the court 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 Jeong Jong-ho (Presiding Justice)