(영문) 서울고등법원 2019.4.4. 선고 2018누57171 판결

1. Of the judgment of the court of first instance, the part against the defendant regarding unfair suspension from office among the decision of retrial rendered by the defendant on October 27, 2017 between the plaintiff and the defendant's intervenor as to the application for reexamination of unfair personnel or unfair suspension from office, which was filed by the defendant against the plaintiff, is revoked, and the plaintiff's claim corresponding to the revocation part is dismissed.

2. The remaining appeals by the Defendant and the Intervenor are dismissed.

3. The total cost of the lawsuit shall be borne by each party, including the part resulting from the supplementary participation.

Purport of claim and appeal

1. Purport of claim

The decision made by the National Labor Relations Commission on October 27, 2017 between the plaintiff and the defendant joining the defendant (hereinafter referred to as "the intervenor") shall be revoked with respect to the case of the Central 2017 Deputy Sea 857 Unfair Personnel and the case of the application for reexamination of unfair suspension from office.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

Reasons

1. Details of the decision on retrial;

The court's explanation on this part is the same as the corresponding part of the judgment of the court of first instance. Thus, this part is cited by Article 8 (2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

2. Determination as to the legitimacy of the instant lawsuit

(a) The intervenor's defense on the principal safety;

On September 1, 2017, the Plaintiff ordered the Intervenor to be reinstated, and the labor contract between the Plaintiff and the Intervenor ends on December 31, 2018, the Plaintiff has no interest in filing a lawsuit seeking revocation of the instant decision on reexamination.

B. Determination

Of the decision of reexamination on the reinstatement order and the payment order of wages of the National Labor Relations Commission, in cases where the reinstatement order becomes invalid after the termination date of the labor contract due to changes in circumstances, the specific obligation to pay wages arising from the payment order of wages does not retroactively retroactively cease to exist even if the reinstatement order is invalidated due to changes in circumstances from the date following the dismissal date until the termination date of the labor contract for which the order of reinstatement could be implemented. Therefore, the employer bears the obligation under public law to follow the decision of the Labor Relations Commission which includes the payment order of the amount equivalent to wages even after the termination of the labor contract due to the closure of the workplace, and the employer has a legal interest to seek the cancellation of the decision of reexamination (see, e.g., Supreme Court Decision 92Nu13196, Apr.

On September 1, 2017, the Plaintiff revoked the instant order of personnel management and issued an order of reinstatement to an intervenor. On September 15, 2017, the Plaintiff paid to the intervenor a total of KRW 4,556,310 of the wage difference following the instant order of personnel management on September 15, 2017 and the wage for the instant period of disciplinary action, and the intervenor was found to have served as an internal repair engineer in C from December 31, 2018 to December 1, 2019 after the termination of the labor contract with the Plaintiff and the Plaintiff on December 31, 2018 (the purport of the entire pleadings and arguments).

However, even if an employment contract between the Plaintiff and the Intervenor is terminated after the decision on reexamination of this case, the Plaintiff still bears the obligation under the public law to follow the decision on reexamination of this case, including the instant personnel order and the wage payment order premised on the premise that the instant disciplinary action is unfair. As such, there is a legal interest to seek the cancellation of the decision on reexamination of this case to exempt the Plaintiff from its obligation.

Therefore, the Intervenor’s defense of safety cannot be accepted.

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

A. The parties' assertion

1) The plaintiff's assertion

【Justifiableity of Order of Personnel Management】

Since the labor contract between the plaintiff and the intervenor is not limited to the internal position, the personnel order of this case belongs to the plaintiff's authority as the employer, and the fact that the intervenor's consent was not obtained, the personnel order of this case is not unlawful.

OC reduced the production of small home appliances and concentrated on the production of large home appliances, and the direct visit to a place where home appliances are installed to repair them. Accordingly, the Plaintiff, as a result, has a considerable need for the Plaintiff, to take a transfer to an external position against the Intervenor as an internal position.

In the event that the intervenor works for the outside, the intervenor's salary does not decrease compared to the existing worker's work for the reason that the intervenor is entitled to additional allowances according to the number of repair cases, and that the intervenor's salary does not decrease compared to the existing worker's work for the outside. Thus, the intervenor's living disadvantage due to the instant personnel order cannot be said to be significantly significant.

【Justifiableity of the instant disciplinary action】

The grounds for disciplinary action are recognized since the intervenor was absent from office without obtaining approval of annual leave from the plaintiff.

In light of the following: (a) the Plaintiff unilaterally absent from work without permission for two days in spite of reasonable grounds to restrict the use of annual leave by the repair engineers of the household appliances in the household appliances due to the nature of the repair work of the household appliances; (b) the Intervenor provided false explanation as to the grounds for annual leave application by the Plaintiff Personnel Committee; and (c) according to the Plaintiff’s rules of employment, the instant disciplinary action may not be deemed to be excessive, taking into account the following: (a) the Plaintiff’s demand for repair was extended; (b)

2) The assertion by the Defendant and the Intervenor

【Improperity of the Personnel Order】

○ Employment contract between the Plaintiff and the Intervenor is an employment contract with the content of employment and the place of employment specified, but the instant personnel appointment order made without the consent of the Intervenor is unlawful.

○ At the time of the instant personnel assignment, the Plaintiff’s internal volume was not reduced, and it was unnecessary to recruit the external employees, and there was no ground to believe that the Intervenor is suitable for the change of his position to the external position, i.e., the Intervenor was not placed in the position of the external position, so the instant personnel assignment is not recognized or is not yet necessary. If the Intervenor, who is only in the position of the external position, has been engaged in non-regular work, the salary would be reduced because it is difficult to receive performance rates, and the external position is more physical burden and mental stress than the internal position, and thus, the Intervenor’s living disadvantage following the instant personnel assignment is excessive. In the process of the instant personnel assignment, the Plaintiff did not undergo the procedure required by the good faith principle, such as consulting with the Intervenor, etc. in consultation with the Intervenor.

【Improperity of the instant disciplinary action】

○ The Plaintiff’s refusal of only the Intervenor’s annual leave application while approving other employees’ annual leave application at the same time is against equity, and it is unlawful to exercise the Intervenor’s right to change the time for the Intervenor’s annual leave application even if the Plaintiff’s annual leave application is not deemed to seriously impede the Plaintiff’s business operation. The Intervenor’s exercise of the right to change the time is unlawful

○ Even if the grounds for disciplinary action are acknowledged to the Intervenor, the Intervenor was deprived of the opportunity to explain disciplinary proceedings prescribed in the rules of employment and collective agreement, so the instant disciplinary action is null and void in violation of the above procedures.

In full view of the fact that ○ Intervenor applied for annual leave, but the Plaintiff was absent from office, and the Intervenor explained the grounds for annual leave in the personnel committee, and there was no case of heavy disciplinary action of suspension on the ground that the Plaintiff was absent from office without permission, the disciplinary action is excessive.

B. Relevant statutes and the rules of employment

It is as shown in the attached Form.

C. Facts of recognition

The court's explanation on this part is identical to the corresponding part of the judgment of the court of first instance (Article 8 (2) of the Administrative Litigation Act and the main part of Article 420 of the Civil Procedure Act.

D. Determination

1) Whether the instant personnel order is justifiable

The reasoning for this Court’s explanation is as follows: (a) the corresponding part of the judgment of the court of first instance (Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act, except for the following parts, are the same as the corresponding part of the judgment of the court of first instance (Article 9(d)1).

[Supplementary Use]

○ In the first instance judgment of the first instance court, the judgment of the instant case was unlawful on the premise that it is different from this case’s judgment of the first instance court.” “The part concerning the instant personnel order among the instant judgment of the retrial is unlawful.”

○○, the 12th judgment of the first instance court does not appear to be “no one,” and “the plaintiff seems to have given a certain adaptation period to the intervenors prior to the commencement of the 12th judgment of the first instance court.”

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2) Whether the instant disciplinary action is improper

A) Relevant legal principles

Article 60(5) of the Labor Standards Act provides that "an employer shall grant a leave under paragraphs (1) through (4) at the time when the employee requests, and during that period, ordinary wages or average wages determined by the rules of employment, etc.: Provided, That granting a leave at the time when the employee requests, if there is a substantial impediment to the operation of the business, it may be changed." As such, an employer shall grant a annual leave at the time when the employee requests, except where granting a leave at the time when the employee requests, if the employer grants a leave at the time when the employee requests, a period of annual leave shall be granted to the employee at the time when the employee requests." This refers to a case where there is a concern or probability that the workplace's efficiency or performance will considerably drop compared to ordinary times, thereby causing considerable business disadvantage. In determining this, the nature of the work performed by the employee, the remaining worker's work quantity, whether the employee is secured by substitution, whether other worker has applied for a annual leave, etc. shall be considered comprehensively.

B) Existence of grounds for disciplinary action

Comprehensively taking account of the facts acknowledged as above and the first instance court and the evidence presented by this court, the intervenor's annual leave application date ( May 2, 2017 and May 4, 2017), May 1, 2017, which was before and after the date of the intervenor's annual leave application (the Workers' Day, May 2, 2017, May 3, 2017, and May 5, 2017, which was children's Day, are so-called the so-called check bridge annual leave, and the number of working days between such annual leave can be increased compared to the ordinary wage. The intervenor's return of the annual leave, the intervenor did not provide a detailed explanation of the reasons, or its schedule, and Article 29 (1) of the Rules of Employment of the plaintiff provides that "where a member intends to use the annual leave under this rule, he/she shall submit an application for leave to the head of the department or the representative of the company to which he/she belongs and shall obtain approval from the company, and that amendment may interfere with the business.

However, examining the above facts and the evidence presented by the first instance court and the court in light of the legal principles as seen earlier, the Intervenor’s use of annual leave on the date of application for annual leave ( May 2, 2017 and May 4, 2017) is not deemed to seriously impede the Plaintiff’s business operation, and thus, the Plaintiff’s act not permitting the annual leave cannot be deemed as a legitimate exercise of the right to change the period under the Labor Standards Act or the rules of employment. Therefore, solely on the fact that the Plaintiff did not approve the Intervenor’s annual leave application, it cannot be deemed that the Intervenor was absent without permission on May 2, 2017 and May 4, 2017, and thus, it cannot be deemed as grounds for disciplinary action against the Intervenor.

Ultimately, the instant disciplinary action is unlawful because it is not recognized as a ground for disciplinary action.

(1) The proviso to Article 60(5) of the Labor Standards Act recognizes the employer’s right to change the period of annual leave only “where there is a enormous market for business operation.” If an employer grants leave at a time designated by an employee, the employer may change the period of annual leave only when there are circumstances such as the efficiency or performance of his/her work at the workplace is considerably deteriorated than ordinary times, or there is a possibility of such a possibility. The employer does not have the right to change the period solely on the general possibility that the amount of work remaining after the decrease in the number of employees due to the decrease in the number of employees by simply using the annual leave. This is not expected to change the period of annual leave on May 2, 2017 and May 4, 2017.

② On May 2, 2017, the Intervenor’s annual leave application date was included in the work except the Intervenor, since the Intervenor was a repair engineer of the household household household household household household household household household household household household household household household household household household household household household household household household household household household household household household household household household household household household household household household household household household household household household household household household household household household household household household household household household household household household household household household household household.

③ On May 4, 2017, the Plaintiff approved the annual leave of absence on the part of the repair engineer J and K of the household appliances on the part of the Plaintiff.

④ Since May’s annual leave was anticipated, the Plaintiff was able to prepare other means, such as securing substitute personnel, if it is expected that the amount would substantially exceed the ordinary wage during the period included in the date of the Intervenor’s annual leave application. However, there is no evidence suggesting that on the date of the Intervenor’s annual leave application, the Plaintiff was performing his/her duties through substitute personnel or making it impossible to secure substitute personnel. There is no evidence to deem that the actual receipt quantity of the check on May 2, 2017 and May 4, 2017 exceeds the receipt quantity of other monthly leave on May 2, 2017.

⑤ Article 60(5) of the Labor Standards Act and the rules of employment of the Plaintiff do not require an employee to specifically state the reason when applying for the annual leave. Even in the Plaintiff’s rules of employment, it does not mean that the Plaintiff’s employee can use the annual leave only when there are inevitable circumstances. The Intervenor, when applying for the annual leave to the Plaintiff, entered the reasons in a brief manner as “family event” and the Plaintiff also approved the annual leave.

C) Determination on disciplinary action

Unlike the above view, even if the Intervenor’s absence from office on May 2, 2017 and May 4, 2017 constitutes grounds for disciplinary action, and Article 93(8) of the Plaintiff’s Rules of Employment provides that “if the Plaintiff is absent from office without permission or is dismissed or dismissed on at least two occasions during the month, he/she shall be punished by suspension from office,” the following circumstances acknowledged by the evidence, namely, that the Plaintiff does not have a precedent of suspension from office on the ground that the Plaintiff was absent from office only, and that the Intervenor applied for an annual leave on April 26, 2017, which was from May 2, 2017 and May 4, 2017, and the Intervenor did not approve by the Plaintiff, and the Intervenor’s absence from office was only two days during which the date of absence from office was only two days, and thus, the instant disciplinary action was unlawful by abusing or abusing the discretion of the person with authority to take disciplinary action, as it considerably loses its validity in light of social norms.

D) Sub-determination

The part concerning the disciplinary action of this case among the decision on review of this case differs from the decision on the existence of the grounds for disciplinary action, but the conclusion is that the disciplinary action of this case is unfair, and therefore the part concerning the disciplinary action of this case is legitimate.

4. Conclusion

Therefore, the part concerning the issuance of the personnel order of this case among the plaintiff's claims is justified, and the part concerning the disciplinary action of this case is dismissed as it is without merit. Since the part concerning the disciplinary action of this case among the judgment of the court of first instance is unfair with different conclusions, part of the appeal by the defendant and the intervenor is accepted, and the part concerning the unfair suspension from office of the judgment of the court of first instance is revoked, and the plaintiff's claim corresponding to the cancellation part is dismissed. The part concerning the personnel order of this case among the judgment of the court of first instance is consistent with this conclusion