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

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

June 2, 2006

Suwon District Court Decision 2004Gahap5270 Delivered on October 6, 2005

1. The part against the defendant in the judgment of the court of first instance shall be revoked, and the plaintiff's claim corresponding to that part shall be dismissed.

2. The plaintiff's incidental appeal and the claim for nullification of the dismissal added in the appellate court are all dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The Defendant’s dismissal of the Plaintiff on April 10, 2003 against the Plaintiff is confirmed to be null and void (the Plaintiff added a claim for nullification of dismissal to the appellate court). The Defendant pays to the Plaintiff the amount of KRW 41,320,000 with interest of KRW 20% per annum from the next day of the delivery of a copy of the instant complaint to the day of complete payment, and the amount of KRW 2,307,00 per month from August 1, 2004 to the day of complete payment, respectively.

2. Purport of appeal

The text of paragraph (1) is as follows.

3. Purport of incidental appeal;

Of the judgment of the court of first instance, the part against the plaintiff seeking additional payments shall be revoked. The defendant shall pay to the plaintiff the amount of KRW 12,729,289 and the amount with 20% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of complete payment, ② KRW 74,419 (2,307,000 x 1/31) and KRW 490,787 per month from August 2, 2004 to the day of reinstatement.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged by comprehensively considering the whole purport of the pleadings in each entry in Gap evidence Nos. 1, 2, 4, 5, and 8, respectively.

A. The defendant is a company running the taxi transport business in Egrespoon 708-25, Dongwon-gun, Dongwon-gun, Dongwon-gun, and the plaintiff is a person dismissed on April 10, 2003 while serving as a taxi driver belonging to the defendant.

B. On April 10, 2003, the defendant held a disciplinary committee against the plaintiff and took disciplinary action against the plaintiff on the same day on the ground that "the defendant would inflict significant damage on the company's management by personally using 988,000 won which should be paid every day, and would no longer be able to continue the labor contract because it did not reflect on the mistake." (hereinafter "the dismissal of this case").

C. On October 23, 2003, the Plaintiff filed an application for remedy against unfair dismissal and unfair labor practices with the Gangwon Regional Labor Relations Commission, and dismissed the Plaintiff, which is the most severe disposition among the types of disciplinary actions, on the ground that it is abuse of discretionary power, but was subject to a decision of dismissal as to unfair labor practices. In the review case requested by the Plaintiff and the Defendant, the National Labor Relations Commission maintained the unfair dismissal part of the above initial decision on May 7, 2004, and decided that the dismissal of the Plaintiff was an unfair labor practice. The aforementioned review decision was finalized because the Defendant did not institute an administrative litigation.

D. The instant provision regarding dismissal under the Rules of Employment of the Defendant is as follows.

Article 17 (Deposit of Transport Revenues)

1. Employees shall deposit the full amount of transportation revenues on a day after a business day to the company;

2. Payment hours shall be the time determined by the labor-management agreement;

Article 36 (Dismissal)

If an employee is in conflict with the following subparagraphs, he/she shall be referred to the Disciplinary Committee and dismissed:

6. A person who has misappropriated or embezzled transportation revenues or stolens company's assets, or a person who has not paid money for at least three days.

Article 37 (Disciplinary Action)

1. With respect to the causes attributable to the employees falling short of the preceding Article, in the case where the negligence of a preventive co-owner in advance of dismissal is insignificant according to the seriousness thereof, disciplinary action shall be

(1) Warning, reprimand, salary reduction, or suspension from office.

Article 38 (Composition of Disciplinary Committee)

1. The Disciplinary Committee shall be comprised of two members, respectively, and shall be decided with the consent of a majority or more;

2. Determination as to the claim for nullification of dismissal

A. The parties' assertion

The plaintiff asserts that the dismissal of this case is null and void for the following reasons. Accordingly, the defendant asserts that the dismissal of this case was justified as it was done in accordance with the rules of employment of the defendant since there were grounds for disciplinary action as mentioned above.

(1) With respect to procedural legitimacy

① In holding a disciplinary committee for the dismissal of this case, there is a significant defect in the dismissal of this case, and ② the organization of the disciplinary committee under the rules of employment of the defendant guarantees the fairness of disciplinary action by stipulating that the number of labor and management should be equal. In violation of this, the qualifications of the disciplinary committee members of the company are not limited to the qualification of the disciplinary committee members of the company, and the defendant representative director unilaterally commissioned two disciplinary committee members of the company (in the case of the defendant worker at the time, referring to 'personal inquiry') without being commissioned by the organization representing workers, and the disciplinary committee composed of them was dismissed by the defendant representative director of the company. Accordingly, the dismissal of this case is null and void.

Doz. With respect to substantive legitimacy

① The Plaintiff’s failure to pay transport earnings does not constitute grounds for dismissal, since the Plaintiff’s failure to pay transport earnings does not constitute grounds for dismissal, and it does not constitute grounds for dismissal even in light of the Defendant’s practice of paying transport earnings for two to three days even 10 days even if they were to be deposited in a daily unit. ② The Plaintiff’s failure to pay transport earnings was inevitable due to the Defendant’s unreasonable liability for damages arising from traffic accidents that occurred in the course of performing his duties, which led to the economic difficulties arising therefrom. The Plaintiff’s failure to pay all unpaid transport revenues prior to the dismissal of the instant case, and the amount is not larger than that of other articles, and the amount is much larger than that of other articles, and in the case of Nonparty 1, whose amount is much larger than that of the instant dismissal, the dismissal of the instant case is too severe than that of the instant dismissal. Therefore, it is null and void.

【Unfair labor practice, good faith principle, etc.

① Considering that the dismissal of this case constitutes unfair labor practices, and the dismissal of this case constitutes unfair labor practices, and ② the fact that the dismissal of this case had already been decided by the Labor Relations Commission that the dismissal of this case constitutes unfair dismissal, and that the defendant was decided by the dismissal of this case, and that the dismissal of this case was decided by the Labor Relations Commission, and that it was decided by the defendant that the dismissal of this case constitutes unfair dismissal, the dismissal of this case cannot be permitted again in the lawsuit of this case against the principle of good faith or the principle of no-competence.

(b) Fact of recognition;

The following facts may be acknowledged by taking into account the following facts: Gap evidence 2, 3-2, Eul evidence 6, Eul evidence 15-1 through 3, Eul evidence 1-1 through 9, Eul evidence 3-1 through 20, Eul evidence 4, Eul evidence 5-1 through 5, Eul evidence 6-1 through 8, Eul evidence 7-1 through 5, Eul evidence 8, 9, Eul evidence 14-1 through 8, Eul evidence 14, Eul evidence 18, 20, Eul evidence 21-1 through 4, Eul evidence 25-7, Eul evidence 28, and Eul evidence 31, Eul evidence 28, and Eul evidence 1-2's testimony in the first instance trial.

(1) According to the Defendant’s wage agreement, etc., drivers employed by the Defendant deposited a certain amount of money out of the daily transport income under the Defendant’s daily operation (hereinafter “ taxi commission”) to the company on the 26th day of each month, and the remainder of the transport income except the taxi commission was to be regarded as the employee’s income. In addition, the Defendant operated the company by separately paying the monthly wage to the driver.

D. The Defendant’s driver’s taxi commission on a daily basis is in principle paid daily, but the payment is deferred in exceptional cases, such as long-distance driving. However, there are often instances where certain articles make payment of taxi commission on a two to three-day basis or one week unit, etc., and the Defendant, without considering such a form of payment.

The plaintiff was employed by the defendant on September 1, 2002 and served as a fixed pilot from December 1, 2002. The plaintiff was 76,000 won per day taxi commission and 310,000 won per month.

Applicant The Plaintiff caused a traffic accident on March 15, 2003 by his own negligence during the taxi operation. While the Defendant dealt with the large-scale and large-scale damage caused by the said accident through the mutual aid association, the Defendant did not take part in the deduction for self-vehicle damage, the vehicle repair cost was not dealt with. However, the said accident is an accident (large 10 items) caused by the Plaintiff’s gross negligence as prescribed by the Rules of Employment (Article 13) of the Defendant’s Employment, and the Plaintiff is liable to compensate the Defendant for the said damage. Accordingly, the Plaintiff was liable to compensate the Defendant for the total amount of KRW 1,628,000 for the repair cost of the said accident and KRW 228,00 for the taxi commission period.

(v) However, while the Plaintiff operated a taxi from March 13, 2003 to March 30, 2003, the Plaintiff failed to pay 988,000 won, which is the taxi commission equivalent to 13 days out of the transport earnings (hereinafter “instant taxi commission”).

⑹ 피고는 원고 등 사납금을 연체하고 있는 운전기사들에게 2003. 3. 31.경, 2003. 4. 2.경 등 수차례에 걸쳐 사납금 성실 납입을 독촉하였고, 불성실 미납자들에게는 시말서나 각서를 받는 등의 조치를 취하였다. 그러나 원고가 여전히 이 사건 사납금을 납입하지 아니하자 2003. 4. 10.자로 징계위원회가 개최된다는 사실을 통지하였다. 그러자 비로소 원고는 2003. 4. 10. 징계위원회 개최 직전 이 사건 사납금을 납입하였으나, 피고는 원고에게 사납금 연체와 관련하여 소명할 기회를 준 다음 징계위원회를 개최를 속행하여 이 사건 해고를 하게 되었다.

⑺ 위 징계위원회의 징계위원으로는 회사측에서 삼우택시 주식회사(이하 ‘삼우택시’라 한다) 대표이사인 소외 3과 그의 부인 소외 4가, 근로자측에서 소외 5, 6이 각 참석하였고, 징계위원들 모두 피고 대표이사의 위촉에 따라 선임이 되었다. 그리고 징계위원들의 만장일치로 이 사건 해고가 의결되었다.

⑻ 한편, 피고 소속 근로자 소외 1은 2003. 4. 11. 사납금 2,862,000원을 연체하였다는 사유로 해고되었다가, 사납금의 변제를 약속한 후 2003. 6. 2. 재입사 형식으로 복직되었다.

⑼ 피고와 삼우택시는 공동운수협정을 체결하고 주차장을 공동으로 사용하는 등 실질적으로 하나의 사업장으로 운영하고 있다. 그런데 피고 및 삼우택시의 근로자들이 2003. 3. 20. 전국민주택시노동조합 소속 노동조합인 대신·삼우 분회를 설립하는 총회를 개최하고, 2003. 4. 1. 피고에게 노조설립을 통보하였다. 그 무렵 삼우택시의 근로자로 위 분회 위원장인 소외 7이 2003. 3. 31.자로, 대의원인 소외 8이 2003. 4. 7.자로, 피고 소속으로 대의원인 소외 9가 2003. 4. 8.자로, 사무장인 원고가 2003. 4. 10.자로 각 소속 회사로부터 해고되었다.

C. Determination

(1) The argument on procedural justification

㈎ 징계사유 미통지와 소명 기회 미부여

The facts that the Defendant informed the Plaintiff of the grounds for dismissal in advance and gave an opportunity to vindicate are as seen earlier, and such facts are evident according to the written statement (No. 1-2) signed by the Plaintiff, stating the details thereof in writing. Furthermore, the Defendant’s rules of employment do not provide procedures for prior notification and giving an opportunity to make statements. As seen earlier, the Defendant’s rules of employment do not have the procedures for providing a prior notification and giving an opportunity to make statements. In such a case, even if a disciplinary action was taken without taking such procedures, the effect of the disciplinary action does not affect (see Supreme Court Decision 93Da26496, Sept. 30, 1994). The Plaintiff’s above assertion is without merit.

㈏ 징계위원회 구성상 하자

The defendant's rules of employment only provides that "the Disciplinary Committee shall be composed of two members of the union and the company, respectively, and does not have any provision regarding the qualifications or appointment procedures of disciplinary committee members, as seen earlier. Therefore, the qualifications or appointment procedures of disciplinary committee members cannot be discussed separately. Since the defendant constitutes the Disciplinary Committee in the form prescribed by the rules of employment as two disciplinary committee members as prescribed by the rules of employment, and then the dismissal of this case is resolved after the two members of the union and the company were decided by the defendant's representative director, it is difficult to see that there is any procedural defect in the composition. Furthermore, since the non-party 5 and the non-party 6, who is the worker disciplinary committee, is not a person who can represent the opinion of the worker, there is no evidence to deem that the disciplinary committee was constituted in violation of the provisions of the rules of employment. The plaintiff's above assertion is without merit.

Do Governor's argument on substantive legitimacy

㈎ 해고사유 부존재

As seen above, the Plaintiff’s failure to pay the instant taxi commission on April 10, 2003 when operating a taxi and paying it in lump sum on and after April 10, 2003 constitutes a ground for dismissal under Article 36 subparag. 6 of the Rules of Employment of the Defendant as an act useful for transport earnings. Although the Plaintiff asserted that the instant taxi commission is not useful or embezzled, according to the Plaintiff’s statement in subparagraph 1-2, it is the fact that the Defendant’s failure to pay the instant taxi commission was due to an accident, and thus, it constitutes useful because it was used for another purpose, and thus constitutes a “person unpaid for transport earnings for at least three days” as stipulated in the same provision. However, it is not changed that the said act still constitutes a ground for dismissal.

On the other hand, the Plaintiff even has a practice of paying the taxi commission on a 10-day basis, so it cannot be deemed a ground for dismissal on the part of the Plaintiff, i.e., the payment of the instant taxi commission on a daily basis. However, in light of the above fact that the payment of the taxi commission was made on a one-day basis and the granting of postponement only when there exist justifiable grounds, it is difficult to deem that some drivers did not pay the taxi commission in a daily unit, and that such a practice was established, and rather, it constitutes a ground for disciplinary action as a matter of principle, in the case of the delayed payment without justifiable grounds. Furthermore, the fact that the Plaintiff was urged by the Defendant to pay the taxi commission of this case on a one-day basis as seen earlier is that the unpaid taxi commission of this case cannot be justified. Ultimately, the Plaintiff’s assertion as to the absence of the ground for dismissal of this case is without merit.

㈏ 징계양정의 적정성

According to the above facts, ① the Plaintiff’s failure to pay the taxi commission of this case is due to difficulties arising from compensating for damages caused by traffic accidents caused on March 15, 2003. However, the Plaintiff’s failure to pay the taxi commission of this case from March 13, 2003, prior to the occurrence of the above traffic accident. This is the time when the Plaintiff started to work as the Defendant’s fixed passenger weapons for three months, and the Plaintiff’s failure to pay the taxi commission of this case. ② The traffic accident occurred due to the Plaintiff’s gross negligence, and thus, it is difficult to deem that the Defendant would bear the damages caused by the accident as the Plaintiff’s failure to pay the taxi commission of this case. ③ Although the Plaintiff paid the taxi commission of this case in full, it is difficult to expect that the Plaintiff’s failure to pay the same amount would not be repeated on the ground of the fact that the Plaintiff was paid in full on the day when the disciplinary committee was held, and the Plaintiff’s failure to pay the same amount would not have any reasonable ground for dismissal.

In light of such various circumstances and all the circumstances revealed in the argument in this case, it is common that a company operating taxi transport business uses operating funds for transport income paid to the company by operating a taxi every day. In such a business structure, it is the basic duty of a taxi driver to faithfully and regularly pay transport income to the company in accordance with the wage agreement, etc. Thus, it is reasonable to view that the labor relationship between the defendant and the plaintiff not only constitutes a non-performance of an employee's essential and basic duty under the wage agreement, but also constitutes a ground for dismissal, in full view of the fact that the failure of the driver to properly perform the duty of paying transport income pursuant to the wage agreement, etc. is a non-performance of an employee's fundamental duty under the wage agreement, etc., even though there are no special circumstances.

Therefore, it cannot be deemed that the dismissal of the Defendant against the Plaintiff deviates from or abused the right of disciplinary discretion. The Plaintiff’s assertion disputing the substantive legitimacy of the dismissal of the instant case, such as the appropriateness of disciplinary action, is without merit.

x argument on unfair labor practices, etc.

㈎ 부당노동행위

In a case where it is recognized that there is a justifiable reason for the unfavorable disposition such as an examination, dismissal of workers, etc., such unfavorable disposition does not constitute an unfair labor practice since the reason for such unfavorable disposition can not be said to be merely a mere surface room even if the employer is presumed to be an employer who did not conduct the labor union activity of workers, or the employer is presumed to be an employer's intention (see Supreme Court Decision 96Nu16063, Jun. 24, 1997).

As shown in the Plaintiff’s assertion, it is insufficient to recognize that the Defendant dismissed the instant dismissal for the purpose of interfering with the Plaintiff’s establishment and activities, and there is no other evidence to recognize that the instant dismissal was unfair labor practice. Rather, the instant dismissal against the Plaintiff is in accordance with the Plaintiff’s legitimate exercise of the Defendant’s disciplinary right on the ground that the Plaintiff’s act of default of the Plaintiff’s personal misconduct was followed by the Defendant’s failure to exercise the Plaintiff’s justifiable disciplinary right on the ground that the instant dismissal was followed by the Defendant’s act of default of the taxi commission, which is the Plaintiff’s personal misconduct. The Plaintiff’s assertion is merely without merit.

㈏ 신의칙, 금반언의 원칙

In this regard, it is difficult for the Labor Relations Commission to dispute the employer in the civil procedure newly raised solely on the ground that the order of remedy for unfair dismissal was issued and finalized by the Labor Relations Commission to the employer is not permissible against the principle of good faith or the principle of good faith. Furthermore, there is no evidence to acknowledge that the Defendant was taking advantage of the above decision of the Labor Relations Commission. The Plaintiff’s above assertion is without merit.

3. Determination on the claim for wages and consolation money

Under the premise that the dismissal of this case is null and void, the Plaintiff asserts that the Defendant should pay the same amount as the written claim of compensation, which is compensation for mental distress suffered by the Plaintiff due to wages and unfair dismissal from the date of dismissal to the date of reinstatement of the Plaintiff. However, as seen above, the dismissal of this case is legitimate due to justifiable cause. Accordingly, the Plaintiff’s assertion on this is without merit without need to further examine.

4. Conclusion

If so, the plaintiff's claim in this case, including the claim for nullification of additional dismissal, in the appellate court, shall be dismissed for all reasons. However, since the judgment in the first instance is partially unfair, the defendant's appeal shall be accepted and the part against the defendant in the judgment in the first instance shall be revoked, and the plaintiff's claim corresponding to that part shall be dismissed. The plaintiff's incidental appeal and the claim for nullification of additional dismissal in the appellate

Judges Kim Byung-Un (Presiding Judge)