Plaintiff (Law Firm General Law Office, Attorneys Kim Nam-nam et al., Counsel for the plaintiff-appellant)

Defendant Co., Ltd. (Attorney Lee Dong-min et al., Counsel for the defendant-appellant)

April 8, 2004

Suwon District Court Decision 2001Gahap15272 Delivered on June 26, 2003

1. The defendant's appeal is dismissed.

2. The costs of appeal are assessed against the defendant.

1. Purport of claim

The defendant shall pay to the plaintiff 1,544,949 won per month from September 4, 1999 to the time the plaintiff is reinstated.

2. Purport of appeal

From September 4, 1999 to the time the plaintiff is reinstated, the part of the judgment of the court of first instance against the defendant ordering payment exceeding the amount of 414,472 won per month shall be revoked, and the plaintiff's claim corresponding to the above revoked part shall be dismissed.

1. Basic facts

The following facts are either disputed between the parties, or acknowledged by Gap evidence No. 1-2, Eul evidence No. 9 and 10, taking into account the overall purport of the pleadings.

A. The dismissal of the instant disciplinary action

The Plaintiff, who was employed on October 12, 1994 and worked as a taxi engineer for the Defendant Company, was subject to disciplinary action against the Defendant Company on September 4, 1999, on the ground that “ around 13:00 on July 30, 1999, interference with business due to the disorder in business management due to the violence in the workplace in the Defendant Company’s parking lot, and the occurrence of fear and apprehension” was subject to disciplinary action (hereinafter “instant disciplinary action”).

(b) the filing of a decision on review and administrative litigation;

(1) On September 8, 199, the Plaintiff’s request for remedy to the Gyeonggi Regional Labor Relations Commission was defective, and on November 16, 1999, the said commission recognized that the instant disciplinary dismissal constituted an unfair dismissal in violation of the collective agreement, and issued the Plaintiff’s order to return to the original position and pay wages to the Defendant Company. Accordingly, on December 22, 1999, the Defendant Company’s request for reexamination was defective, and the Central Labor Relations Commission, on March 27, 2000, rejected the Defendant Company’s request for reexamination on the ground that the disciplinary action was unfair (hereinafter “instant decision”).

D. The defendant company filed a lawsuit against the chairperson of the Seoul Administrative Court to revoke the High Court for Unfair Dismissal (the plaintiff was the defendant's intervenor in the above case), but on March 9, 2001, the defendant company's claim was dismissed on the ground that the dismissal of the disciplinary action in this case did not meet the grounds for the disciplinary action, and the dismissal of the appeal in Seoul High Court (the case number omitted) and the dismissal of the appeal in the first instance judgment (the case number omitted) became final and conclusive.

2. The plaintiff's assertion

The plaintiff asserts that since the disciplinary dismissal against the plaintiff of the defendant company in this case is null and void, the defendant company is obligated to pay wages from the disciplinary dismissal in this case to the reinstatement of the plaintiff.

Therefore, I will examine the invalidity of the disciplinary dismissal of this case, which is a preliminary question, and then make a decision on the plaintiff's claim for wages.

3. Determination

A. Whether the dismissal of the instant disciplinary action is null and void

(i)Recognitions

The following facts are either disputed between the parties, or acknowledged by Gap evidence No. 1-2, Eul evidence No. 9 and 10, taking into account the overall purport of the pleadings.

㈎ 피고 회사 노동조합은 위원장인 소외 1이 1999. 12. 31.까지의 임기를 채우지 아니한 채 사임하게 되자 1999. 7. 9. 선거를 실시하였고 그 결과 소외 2가 위원장에 당선되었는데, 신임 위원장의 임기가 소외 2 주장의 3년인지 아니면 소외 1의 잔여임기인 1999. 12. 31.까지인지에 관하여 조합원들 사이에 다툼이 생기고, 특히 당시 선거관리위원을 맡았던 소외 3 등이 소외 2에 반대하는 입장에 서게 되자, 소외 2는 위원장에 당선된 이후 자신의 임기가 1999. 12. 31.까지임을 스스로 인정한 바 있음에도 불구하고 자신의 당초 주장에 반대하였던 소외 3 등 조합원들에 대하여 강한 반감을 가지고 문제를 제기하는 등 반대파인 조합원들을 상대로 갈등과 긴장을 조장하였으며, 노동조합 총무부장으로서 소외 2를 지원하였던 원고 역시 이에 동조하였다(원고는 소외 2와 함께 소외 2를 대표로 하는 ‘좋은 친구들’이라는 회사 내 사조직을 결성하여 활동하여 왔다).

㈏ 이에 불안감과 위기감을 느끼던 소외 3은 1999. 7. 29. 6:20경 피고 회사 주차장에서 원고가 출근하는 것을 보고 그의 멱살을 잡고 우산으로 폭행을 하다가, 원고의 부탁을 받은 동료 근로자 소외 4가 택시 안으로 들어가 휴대폰으로 경찰에 신고하려 하자, 우산으로 택시 앞유리를 깨뜨리고 소외 4의 멱살을 잡아 끌어내렸으며, 소외 3과 소외 4의 싸움을 말리던 동료 근로자 소외 5도 소외 4와 서로 주먹으로 상대방을 폭행하였고(이에 관하여 소외 3, 소외 5, 소외 4는 기소유예 처분을 받았으나, 원고는 혐의없음 처분을 받았다), 또한 소외 3은 이튿날인 7. 30. 13:20경 위 주차장에서 주먹으로 소외 2의 얼굴을 폭행하였고, 옆에 있던 원고는 소외 3의 목을 잡고 이를 말렸다(이에 관하여 원고는 혐의없음 처분을 받았다).

㈐ 그 후 소외 2는 1999. 8. 25. 지역신문의 독자투고란에 위 폭력사태와 그 후의 사용자측의 대응에 관하여 ‘배경이 없으면 일어날 수 없는 상식 밖의 사건’이라는 등의 표현 아래 사용자측이 소외 3에 대한 징계와 자신의 피해에 관한 산업재해보상보험금이 지급되도록 사무처리를 해 주지 않은 데 대한 불만을 토로하면서, 마치 피고 회사가 위 폭력사태의 배후인 것처럼 피고 회사의 명칭과 대표이사의 이름까지 명시하는 내용의 투고를 하였다.

㈑ 또한, 소외 2는 피고 회사가 근로자를 고용한 뒤 미발령을 이용하여 매출을 누락하였다는 내용의 진정서를 1999. 8. 13. 경인지방국세청장에게 제출하면서도, 정작 그 해당 택시기사들이 미발령 기간 동안 상여금·국민연금·의료보험 등의 혜택을 받지 못하였다는 점에 대하여 사전에 사용자인 피고 회사 사이에 해결을 하려고 논의를 시도하는 등의 아무런 노력도 해 보지 아니한 채 대뜸 일방적으로 위 진정서 제출을 선행하였을 뿐만 아니라, 이 사건 징계해고 후인 2000. 5.경 후임 노동조합 위원장인 소외 6에 대하여 “인간쓰레기”, “노동조합을 회사 사장에게 팔아먹은, 창녀보다 더 더러운 소외 6” 등의 용어를 사용하며 비난하는 내용의 유인물을 사외에서 무단 배포함으로써 마침내 노동조합원들 다수가 소외 2의 복직에 반대하는 집단적 의견표명을 하게 되는 등의 사태까지 일어났다.

㈒ 한편, 소외 2는 원고와 같이 1999. 9. 4. 피고 회사로부터 징계해고된 후, 1999. 11. 16. 경기지방노동위원회로부터 부당해고에 해당한다고 인정받아, 중앙노동위원회(2000. 3. 27. 재심판정), 서울행정법원( (사건번호 생략) 판결), 서울고등법원( (사건번호 생략)판결)에서 부당해고라는 결론이 유지되었으나, 위 고등법원의 판결 중 소외 2에 관한 부분은 대법원( (사건번호 생략) 판결)에서 소외 2에 대한 해고처분의 정당성이 인정된다는 취지로 파기환송되고, 환송심(서울고등법원 (사건번호 생략) 판결)에서 위 해고를 부당해고라고 본 중앙노동위원회의 재심판정을 취소하는 판결이 선고되었으며, 위 판결은 대법원( (사건번호 생략))에서 상고기각되어 확정되었다.

d. The legitimacy of the dismissal of the instant disciplinary action

According to the above facts, even if the plaintiff was subject to a disposition of non-guilty suspicion in criminal proceedings on July 29, 199 and on July 30, 1999, the plaintiff's occurrence of such violence constitutes an important cause for the plaintiff's active promotion of conflicts and tensions among union members, in concert with the non-party 2, the chairman of the labor union. This constitutes grounds for disciplinary action that indirectly causes violence inside the labor union, thereby impairing the management order of the defendant company.

However, in the case of the plaintiff, in light of the fact that the degree of misconduct or participation is not severe than that of the non-party 2, it cannot be said that there is a serious reason why the defendant company cannot continue the labor relations with the defendant company. Thus, the defendant company's measure of dismissal, which is the most severe disciplinary measure against the plaintiff, is null and void because the disciplinary measure

B. Determination on the claim for wages

(1) As seen earlier, as long as the dismissal of the instant disciplinary action against the Plaintiff is null and void, the relationship between the Plaintiff and the Defendant Company shall continue to exist in force regardless of the dismissal of the instant disciplinary action, and in full view of the overall purport of the arguments as stated in the evidence No. 5-1 to No. 4, the Defendant Company may recognize the fact that the Plaintiff refuses to return to the Plaintiff until the date of closing argument. Since the worker was unable to provide labor due to a cause attributable to the employer, the Plaintiff may seek payment of the entire amount of wages that the Plaintiff would have received if he had performed work normally during the period of unfair dismissal (see Article 538(1) of the Civil Act, and Supreme Court Decision 20

She also argued that it is impossible to understand daily income that comes from the payment of taxi commission in addition to the basic salary and the allowance in the case of taxi engineers, and that the plaintiff should calculate the wages during the pertinent period of dismissal based on the monthly average income of the vehicle driving personnel with career experience for at least five years in the report on the basic statistical survey of the previous structure. In the case of the plaintiff, the defendant company is implementing the total transport income management system after paying the total transport income to the company, and it is possible for the defendant company to calculate the actual amount of income based on the transport income paid to the defendant company in the case of the plaintiff. Thus, the plaintiff's disciplinary dismissal of this case and the actual income paid by the defendant company in June, July and August, 199 should be calculated on the average of the actual income paid by the defendant company before the disciplinary dismissal of this case.

In full view of the overall purport of arguments in the above evidence Nos. 1, 2, and 2-3-1, 2-4, and 7-1, 5-2 of the above evidence Nos. 3-1, 4-2, and 7-1 through 53, Defendant Company paid the total amount of transportation revenue to the Company under the wage agreement and collective agreement with the labor union on August 25, 1998, and then paid a certain amount of transportation revenue (the level No. 3 is 117,00, 115,000, 1000, hereinafter referred to as "the average monthly amount of transportation revenue") from Defendant Company No. 96-2 of the above evidence Nos. 1, 196-2 of the above evidence Nos. 1, 1, 2, and 3-4 of the above evidence No. 1, 197 of the average monthly amount of transportation revenue to Defendant Company No. 9-2 of the above average monthly amount of transportation revenue exceeding 9-1, 26-3, 900 days of taxi commission.

In light of the overall circumstances revealed in the above facts, i.e., whether the defendant company will pay the total transport income in full, and the nature of the additional transport income in the form of the taxi engineer's work and the fact that the number of monthly work days in the case of the plaintiff is less than the monthly average income in the above investigation report, the plaintiff's income calculated by adding the basic pay and the allowance based on the transport income that the defendant company paid in addition to the defendant company is too small compared to the monthly average income in the above investigation report, cannot be an objective material for the actual income that the plaintiff acquired before the disciplinary action in this case was taken, and there is no other material to specify the plaintiff's actual income at the time of the disciplinary action in this case. Accordingly, the plaintiff's income as a taxi engineer at the time of the disciplinary action in this case can not be viewed as the plaintiff's employee (in the case of the plaintiff at the time of the disciplinary action in this case, the defendant company's experience in driving in the defendant company for more than five years or more years after the above investigation report was confirmed.

However, according to the facts found above, the plaintiff's monthly average working days from January 1, 1999 to August 31, 199 are limited to 16.5 days among the 26 days stipulated in the collective agreement, and in light of the level of ordinary working hours, it is anticipated that the monthly average income in the above report on investigation is expected to be done in the future. On the other hand, since the above report on investigation is based on the premise that the workers engaged in the same type of business work work for the average working hours (less than normal working hours), the monthly average income in the above report on investigation cannot be applied as it is in light of the degree of ordinary working hours. In the end, in the above investigation report, the plaintiff's monthly average income in the above report on investigation cannot be applied as it is, and in the above investigation report, in 1,544,99 won, the monthly average income in the above report on investigation is not applied, and it is reasonable to view that the plaintiff would not be subject to disciplinary action against the defendant company.

Article 30 of the Criminal Procedure Act (amended by Act No. 631, Dec. 2, 2001; Act No. 6541, Aug. 14, 2000; Act No. 6388, Feb. 13, 2001; Act No. 6683, Feb. 22, 2001; Act No. 6681, Feb. 2, 2001; Act No. 6683, Feb. 2, 2001; Act No. 647, Jan. 2, 2001; Act No. 6535, Jan. 2, 2001; Act No. 6435, Feb. 2, 2001; Act No. 6435, Feb. 3, 200; Act No. 6437, Feb. 3, 200; Act No. 65335, Feb. 2, 2001).

4. Conclusion

Therefore, the defendant company is obligated to pay wages at the rate of KRW 980,448 per month from September 4, 1999, which was the date of the dismissal of the disciplinary action of this case, to the plaintiff's reinstatement. Thus, the plaintiff's claim of this case is justified within the above scope of recognition, and the plaintiff's remaining claims are dismissed as it is without merit. The judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Jong-soo (Presiding Judge) No. 20