[1] The requirements for layoff and the method of determining whether the requirements are met

[2] The method and criteria for avoiding dismissal under Article 31(3) of the Labor Standards Act and the purport of allowing the representative of workers to notify the method and criteria for dismissal within 60 days before the dismissal

[1] Under Article 31(1) through (3) of the Labor Standards Act, where an employer intends to dismiss a worker for managerial reasons, there must be an urgent administrative necessity, and the employer shall make every effort to avoid dismissal, and in accordance with reasonable and fair standards, the relevant person shall be selected, and the methods of avoiding dismissal and the criteria for dismissal shall be notified at least 60 days prior to the date of dismissal to the labor union or the representative of workers, which is composed of a majority of the workers or the representative of workers, and shall consult in good faith with each other. The specific contents of each of the above requirements are not conclusive and fixed, but are primarily determined in relation to the degree of fulfillment of other requirements in specific cases. Thus, whether the relevant dismissal by managerial reasons satisfies all of the above requirements should be determined by comprehensively considering individual circumstances that constitute the above requirements.

[2] The purport of Article 31(3) of the Labor Standards Act that made the representative of workers notify the method and criteria for avoiding this dismissal 60 days prior to the execution of the dismissal is that the time required to deliver the notification according to the location and number of the employees under his/her control, time required to deal with the notification by each employee under his/her control, time required for the notification by the representative of workers, and the period for which the representative of workers can consult in good faith. The compliance with the 60-day period is not an effective requirement for the layoff, and there are no special circumstances, such as that the period after the notification in specific cases falls short of the time required to perform the same act, and that the layoff is valid if other requirements for the layoff are met.

[1] Article 31 of the Labor Standards Act / [2] Article 31 (3) of the Labor Standards Act

[1] Supreme Court Decision 92Da14779 delivered on December 22, 1992 (Gong1993Sang, 556), Supreme Court Decision 94Da52119 delivered on December 22, 1995 (Gong1996Sang, 480), Supreme Court Decision 96Nu8031 delivered on September 5, 1997 (Gong1997Ha, 3116), Supreme Court Decision 99Du202 delivered on April 27, 199 (Gong199Sang, 1074), Supreme Court Decision 9Du1809 delivered on May 11, 199 (Gong199Sang, 1171), Supreme Court Decision 200Du32939 delivered on July 29, 2002 (Gong199Sang, 209Ha2938 delivered on July 29, 2005)

Plaintiff (Attorney Jeon Sung-sung et al., Counsel for the plaintiff-appellant)

The Chairman of the National Labor Relations Commission

Suwon High Credit Cooperative (Attorney Ha Young-young et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2002Nu556 delivered on April 10, 2003

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

Pursuant to Article 31(1) through (3) of the Labor Standards Act, where an employer intends to dismiss a worker for managerial reasons, there must be an urgent administrative necessity, and efforts to avoid dismissal shall be made, and persons subject to dismissal shall be selected in accordance with reasonable and fair standards, and the methods and criteria for avoiding dismissal shall be notified and consulted in good faith with the labor union organized by a majority of workers or the representative of workers at least 60 days prior to the date of dismissal. The specific contents of each of the above requirements are not conclusive and fixed, but they are flexible with regard to the degree of fulfillment of other requirements in specific cases. Thus, whether the relevant dismissal by managerial reasons satisfies all of the above requirements should be determined by comprehensively considering individual circumstances that constitute the above requirements (see, e.g., Supreme Court Decisions 200Du9373, Jul. 9, 2002; 2001Da29452, Jul. 9, 2002).

In addition, the urgent managerial necessity here is not limited to the case of avoiding corporate bankruptcy, and it also includes the case where the reduction of the number of employees is deemed reasonable in order to cope with the future crisis in advance. The method and degree of efforts to avoid dismissal to be made before the implementation of the layoff varies depending on the degree of the management crisis of the relevant employer, the managerial reason, the contents and scale of the project, the number of employees by class, etc. If the employer has reached an agreement on the implementation of the layoff in good faith with the labor union or the labor representative in consultation with the labor union or the labor representative about the method of avoiding the dismissal, these circumstances should also be considered in the determination of the efforts to avoid dismissal. The reasonable and fair criteria for the dismissal are not limited to conclusive and fixed, but also vary depending on the business reasons for which the relevant employer must implement the layoff, the contents and organization of the business sector that conducted the layoff, the social and economic situation at the time of the implementation of the layoff, and if the employer has reached an agreement on the criteria for the dismissal in good faith with the labor union or the labor representative, such circumstances should also be considered.

The court below determined that the retrial decision of this case was lawful on the ground that it was not unlawful on the ground that the date of the dismissal was 60 days prior to the execution of the dismissal, provided that the dismissal was not unlawful on the ground that it did not fall under all the requirements of the reorganization dismissal, inasmuch as it did not meet all the requirements of the reorganization dismissal, such as the methods and criteria for avoiding the dismissal and faithfully notifying the representative of workers of the methods and criteria for the dismissal to the representative of workers, and it was justified in accordance with reasonable and fair standards, and that the reexamination decision of this case was made on the ground that the period of the dismissal was 60 days prior to the execution of the dismissal.

As examined in comparison with the evidence of the record, the fact-finding by the court below is just, and there is no reason to believe that the court below did not complete the necessary deliberation or erred by misapprehending the rules of evidence.

In addition, the purport of the above provision that the representative of workers notify the method and criteria for avoiding a dismissal 60 days before the dismissal, is that the time required to deliver the notification according to the specific circumstances, such as the number of employees belonging to the employees subject to the notification, the time required for each worker subject to the notification, the time required to deal with the notification in accordance with the contents of the notification, the period to be used in all cases in order to allow the labor representative to hold a sincere consultation, so the observance of the 60-day period is not a requirement for the validity of the layoff. There are no special circumstances, such as that the period after the notification in concrete cases falls short of the time required for the act, and that the period after the notification in question falls short of the time required for the act. If the other requirements for the layoff are met, the layoff is valid.

In the facts of this case acknowledged by the court below, the judgment of the court below is just in accordance with the above legal principles, and there are no errors in the misapprehension of legal principles as to the criteria for selection of persons subject to layoff and procedural requirements

Furthermore, the judgment of the court below that there is no benefit from the remedy against the issuance of a standby order as long as the layoff against the plaintiff is justified, is just and there is no illegality in the judgment.

We cannot accept the arguments in the grounds of appeal.

Therefore, the plaintiff's appeal is dismissed, and all costs of appeal are assessed against the plaintiff. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Lee Hong-hoon (Presiding Justice)