[1] The case holding that a dismissal disposition against a doctor's will is null and void because it is difficult to view that there is a balance deemed reasonable by social norms between the grounds for disciplinary action and the dismissal as a disciplinary action, even though a doctor caused a sense of sexual humiliation and displeasure to the nurse under his/her jurisdiction and caused a specific nurse's severe pain

[2] Whether an employee who is dismissed due to a cause attributable to the employer can deduct the profit (e.g., interim income) accrued to another employee during the period of dismissal from the amount of wages to be paid by the employer (affirmative), and whether the deduction should be made only from the amount exceeding the amount of temporary retirement allowance under the Labor Standards Act (affirmative)

[1] The case holding that a dismissal disposition against a doctor's will is null and void because it is difficult to see that there is a balance deemed reasonable by social norms between the grounds for disciplinary action and dismissal as disciplinary action, even though a doctor caused a sense of sexual humiliation and displeasure to the nurse under his/her jurisdiction and caused a specific nurse's severe pain

[2] The profit that an employee dismissed due to a cause attributable to the employer falls under the profit accrued from the discharge of his/her obligation under Article 538(2) of the Civil Code, and thus, the employer may deduct the above profit from the amount of his/her wage when he/she pays the above worker the amount of his/her wage during the period of dismissal. Meanwhile, Article 45 of the Labor Standards Act provides that where the employer suspends his/her business due to a cause attributable to the employer who intends to guarantee the minimum living of the worker, the employer shall pay the above amount of his/her average wage during the period of suspension. Here, the suspension of business includes a case where the employment is refused or impossible against his/her will even though the individual worker wishes to provide his/her labor in accordance with the labor contract, so the deduction cannot be made within the scope of the suspension allowance under Article 45 of the Labor Standards Act among the amount of wages that the employee can receive, and the interim income must be deducted from the amount exceeding the suspension allowance.

[1] Article 30(1) of the Labor Standards Act / [2] Article 538(2) of the Civil Act, Article 45 of the Labor Standards Act

[2] Supreme Court Decision 90Meu25277 delivered on June 28, 1991 (Gong1991, 2021)

Plaintiff (Law Firm Shin, Attorney Choi Young-sik, Counsel for the plaintiff-appellant)

Defendant Medical Center (Attorney Dong Dong-sung et al., Counsel for defendant-appellant)

January 14, 2004

1. The defendant's dismissal on September 11, 2001 against the plaintiff is confirmed to be null and void.

2. From September 12, 2001 to November 22, 2001, the Defendant shall pay to the Plaintiff an amount equivalent to KRW 7,196,663 per month, and KRW 5,340,020 per month from November 23, 2001 to the time the Plaintiff is reinstated.

3. The plaintiff's remaining claims are dismissed.

4. Three minutes of the lawsuit are assessed against the plaintiff and the remainder are assessed against the defendant.

5. Paragraph 2 can be provisionally executed.

The disposition No. 1 (the plaintiff sought revocation of the above dismissal disposition, but it should be deemed to be the purport to seek nullification confirmation) and the defendant shall pay to the plaintiff the amount calculated by the ratio of KRW 7,196,663 per month from September 12, 201 to the time the plaintiff is reinstated.

1. Basic facts

The following facts are acknowledged in light of the evidence Nos. 1, 3-1 through 5, evidence Nos. 5-1, 2, 3 (the same as evidence Nos. 2-1, 2, and 3), evidence Nos. 6, evidence Nos. 7-1, 2, Gap, 8, 9, evidence Nos. 3, 3, 4, evidence Nos. 5-1, 2, and 6-1, 5-2, and 6, and there is no counter-proof.

A. Status of the parties

Defendant Medical Center is a medical personnel established for the purpose of treating the Defendant, public health and medical services, and clinical research on diseases. On April 23, 1990, the Plaintiff was appointed as the director in charge of the psychological spirit and division of the Defendant Medical Center and worked as the director in charge of the medical department from January 2001 to September 11 of the same year.

B. The result of a disciplinary resolution and review against the plaintiff

(1) On July 27, 2001, the president, Nonparty 1 of the Defendant Medical Center published a letter of accusation against the Plaintiff’s improper speech or behavior on the Defendant Medical Center’s website, and the Defendant Medical Center’s nurse discussed the above accusation and demanded an administrative sanction against the Plaintiff on August 9 of the same year. On August 10 of the same year, the Plaintiff recommended the Plaintiff to resign, and at the same time, on August 21 of the same year, the Plaintiff demanded a disciplinary resolution against the Plaintiff to the Personnel Committee of the Medical Center (serious disciplinary action) on the ground that the Plaintiff damaged the Plaintiff’s dignity as an employee, such as sexual speech or behavior by the nurse and the poor working attitude.

(2) Accordingly, the above personnel committee held a disciplinary committee on September 7 of the same year to recognize the fact that the plaintiff made a speech and behavior that would cause sexual humiliation to nurses, and such reason constitutes grounds for disciplinary action under Article 47 (1) 3 of the Rules on the Personnel Management of the defendant Medical Center in violation of the prohibition of sexual harassment under the Equal Employment Opportunity Act, and the plaintiff's above misconduct constitutes a serious and intentional case, and made a decision to dismiss the plaintiff on September 1 of the same year, and notified the plaintiff on September 1 of the same year.

(3) On September 17 of the same year, the Plaintiff was dissatisfied with the dismissal disposition by the above personnel committee, and applied for a review of the above disciplinary decision to the Defendant Medical Center. Accordingly, the Defendant Medical Center held a review committee on September 26 of the same year and decided that the Plaintiff’s request for review is dismissed as a result of deliberation, and notified the Plaintiff of the dismissal decision on September 27 of the same year.

C. Provisions on disciplinary action

(1) Examining the provisions regarding disciplinary action among the personnel regulations of the Defendant Medical Center, as follows.

Article 6 (Establishment of Personnel Committee)

(1) The Medical Center shall have a personnel committee.

(2) The fixed number of members of the personnel committee shall be not less than five but not more than seven persons, and the head of the management department, the head of the general affairs team, and the head of the labor union shall be comprised of members per year, and each division, team, and head of the office appointed by the president

Article 47 (Causes of Disciplinary Action)

(1) Where an employee falls under any of the following subparagraphs, the Director shall request the personnel committee to take a disciplinary resolution and take a disciplinary measure according to the result of the relevant disciplinary resolution:

1. When they violate Acts, subordinate statutes and provisions;

2. When he/she breaches or neglects his/her duties;

3. When he commits an act detrimental to his dignity as an employee regardless of a connection with his duties.

Article 48 (Categories of Disciplinary Action) Any disciplinary action shall be removal, dismissal, suspension from office, reduction of salary, and reprimand.

Article 49 (Request for Disciplinary Decision)

(1) If an employee causes disciplinary action under Article 47, the Director shall request the personnel committee to decide on the disciplinary action.

The personnel committee in receipt of the request for disciplinary action under Article 49 shall deliberate and resolve on it within 14 days from the date of receipt of it: Provided, That if it is impossible to make a decision within a fixed period due to any unavoidable reason, it may be postponed within a fixed period after a resolution of the personnel committee.

Article 51 (Effect of Discipline)

(1) Disciplinary action shall be effective as follows:

1. The person who is removed or dismissed shall be deprived of his status; and

2. Suspension from office shall be the period of one to three months, and a person subject to a disposition of suspension from office shall retain his/her status as an employee during that period, but shall not be engaged in his/her duties and shall be reduced by two thirds of the basic salary;

3. Reduction of salary shall be a period of not less than one month but not more than three months, and a half of the average monthly remuneration for the disposal period shall be reduced;

4. Reprimand shall admonish a person for his previous offense, and make him repent of himself.

Article 52 (Interrogation and Right to Make Statements)

(1) In deliberating on a disciplinary case, the personnel committee shall notify a discipline accused person of his/her appearance and give him/her an opportunity to make statements.

(2) Article 7(1) of the Act on the Prohibition of and Remedies for Gender Discrimination provides that "an employee, employer, or worker of a public agency shall not engage in sexual harassment." Article 2 subparag. 2 of the same Act provides that "a sexual harassment means that an employee, employer, or worker of a public agency causes sexual humiliation or aversion due to sexual words, actions, etc. using his/her status or in relation to his/her duties, etc., or gives disadvantages in employment on the ground of failing to comply with the sexual words, actions, or other demands, etc." Article 2(2) of the same Act defines sexual harassment in the workplace for the same purpose, and Article 12 of the same Act provides that the prohibition of sexual harassment in the workplace shall be prohibited.

2. The parties' assertion

A. The plaintiff did not have any grounds for disciplinary action like the defendant medical center's assertion, but the defendant medical center made a dismissal decision based on false facts, and the defendant medical center dismissed the plaintiff. ② The non-party 1, the president of the defendant medical center, appointed the disciplinary committee against the personnel regulations, and caused the disciplinary committee members to make a disciplinary decision against the plaintiff. The dismissal disposition was made in violation of the disciplinary procedure such as preparing a protocol of review and a written decision of review and not sending it to the plaintiff. ③ Even if the plaintiff has grounds for disciplinary action, the above dismissal disposition was made in excess of the scope of discretion, such as the plaintiff's duty as a doctor of the long-term medical center, and contributed significantly to improving the management of the defendant medical center. The plaintiff's dismissal disposition was made in excess of the scope of discretion. The plaintiff's dismissal disposition is null and void, and since it was impossible for the plaintiff to receive wages from the time of reinstatement due to such invalid dismissal, the defendant'

B. As to this, the defendant medical center argues that there was an illegality that may be subject to a disciplinary action against the plaintiff, and that the dismissal disposition against the plaintiff was decided and that the dismissal decision was made in the retrial procedure, and that the above dismissal disposition against the plaintiff is justifiable, and that it cannot be deemed that it exceeded the discretionary authority.

3. Determination

A. Whether grounds for disciplinary action exist

(1) The plaintiff's assertion

The plaintiff asserts that the above dismissal disposition of the defendant medical center was based on false facts circulated by the non-party 2 and the non-party 3, who is the nurse of the defendant medical center, and the female, as well as that the plaintiff only made a speech or behavior against the nurse to the extent that it is acceptable in light of the social community's sound common sense and practice, or that it does not violate good morals or social order. Thus, there is no ground for disciplinary action against the plaintiff.

(2) Facts of recognition

The following facts may be acknowledged in light of the whole purport of the pleading in Gap evidence 3-5, Gap evidence 10-1 through 9, Eul evidence 12-1 through 12-4, Eul evidence 8-1 through 5 (Provided, That each entry in Gap evidence 10-3 through 8, Gap evidence 12-1 through 4, and Eul evidence 8-3, which is not believed below among the entries in Gap evidence 8-1 through 4, Gap evidence 4-1 through 4, Eul evidence 10-3 through 8, Eul evidence 12-1 through 12-3, and Eul evidence 8-3, which is contrary thereto, shall not be alleged against each other.

(A) On April 201, the Plaintiff heard that Nonparty 2, the nurse of the Defendant Medical Center, was hospitalized in Seoul National University Hospital, which was the Plaintiff’s school from the Plaintiff. Around that time, the Plaintiff became aware of the Defendant’s mobile phone number due to Nonparty 2’s request that Nonparty 2 visit the Seoul National University Hospital, which was the Plaintiff’s school at which the Plaintiff was the Plaintiff’s school, and asked the doctor in charge to conduct a medical examination. Around that time, Nonparty 2 visited Nonparty 2 about 2-3 times a day for about 1 month from May of the same year and called “bread, what was bread,” and called “the Plaintiff’s frequent telephone number,” and Nonparty 2 did not intentionally receive the Plaintiff’s phone number until Nonparty 2 received the Plaintiff’s phone, and the Plaintiff asked Nonparty 2’s phone with Nonparty 2’s house, and then Nonparty 2 did not come to contact with Nonparty 2 at the latest or late 2 hours before that day.

In addition, on May 201, the plaintiff recommended Non-Party 2 to go to Seoul National University Hospital on the ground that he did not go to the Seoul National University Hospital, and the plaintiff was rejected in the underground parking lot, and therefore, he said that he did not go to the outside, but the plaintiff was rejected. On the same day, when she walks on the mountain paths in Seoul National University University Hospital, he told Non-Party 2 of excessive interest with respect to Non-Party 2 on several occasions.

In addition, around July 26, 2001, the plaintiff, after the non-party 2 moved to the ney's spirit and pathology around June 2001, the non-party 2 talked about the non-party 2, "I am to her mother's body in her mother's marriage will be well managed as model body, and the non-party 2 her body will be a non-party 2's body." The non-party 2 seems to have the same North Korea's eye that the plaintiff changed to her abnormal eye.

(다) 한편, 원고는 1999. 말경 신경정신과 병동에 근무하는 간호사인 소외 4에게 금 5만 원을 주면서 "속옷을 사입으라"고 말했고, 2001. 4.경에는 " 소외 4 간호사도 결혼하고 살이 많이 쪘다, 다이어트를 하든지 운동을 하든지 해서 살을 빼라, 발레리나는 결혼하기 전에도 다이어트를 하지만 결혼하고 나서도 몸매가 망가지지 않게 성교를 자제한다고 하더라"라고 이야기하였다.

(D) In addition, around July 18, 2001, the plaintiff 201, at the defendant medical center 72 bottled the non-party 2 at the defendant medical clinic 72 bottle, "mawn wn wn wn wn wn wn and wn wn wn wn wn wn wn wn wn wn wn wn wn wn wn wn wn wn wn wn wn wn wn wn wn wn wn wn wn wnn wn wn wn wn wnn wn wn wn wn wn wn wn wn wn wn

(마) 그 무렵 소외 2의 형부인 소외 3은 소외 2로부터 원고에 대한 이야기를 듣고, 2001. 7. 26. 15:34경 피고 의료원 홈페이지 자유게시판에 동료직원인 소외 김장섭의 이름을 빌려 마치 위 김장섭이 직접 보고 들은 것처럼 " 피고 의료원에 이런 의사선생님이 계십니다."라는 제목으로 "원고가 간호사 선생님에게 던지는 은밀한 유혹의 소리, 성희롱이 아닌 것 같으면서도 희롱적인 말과 그 말의 억양들, 그러다 집에서 부인한테 걸려온 휴대폰 전화를 받은 후 그 과장의 전화받는 목소리와 태도, 전화가 끝난 후 180° 변해버린 그의 간호사에 대한 태도, 간호사가 의사의 몸종인지 아니면 부인과의 사이가 좋지 않아 성적 유혹을 하고 있는 것인지", "그 광경을 목격한 후 나는 입원한 친척분 대신에 그 의사를 입원시켜 정신과 치료를 해야 할 것 같다는 생각을 하게 되었습니다.", "바뀐 간호사에 대해서도 치근덕거리는 모습을 또 목격하게 되었습니다.", "인간이 서울의대 출신이어야지 의술만 서울의대면 되겠습니까?", "이런 말도 하더라구요, '000야! 어젯밤 꿈에 네가 내 마누라인 것 있지?', 그 간호사의 표정은 정말이지 죽을 것 같은 표정이었습니다."라는 등으로 원고의 위와 같은 언동을 고발한다는 취지의 글을 올렸다.

Accordingly, the Plaintiff filed a criminal complaint against Nonparty 3 as defamation, etc., and Nonparty 3, without confirming the authenticity of the fact at all, posted the above text for the purpose of slandering the Plaintiff, and was indicted as a violation of the Act on Promotion, etc. of Information and Communications Network Utilization and Information Protection, etc., and was sentenced to a fine of KRW 5 million from this court on July 25, 2002.

(2) Determination:

In light of the above facts, the Plaintiff, as the status of the director of the Defendant Medical Center, expressed excessive language related to his behavior and performance against the nurses, such as Nonparty 2 and 4, who assist in his medical treatment, and caused such women to feel displeasure or sexual humiliation. In particular, as to Nonparty 2, regardless of his duties, it is recognized that Nonparty 2 had shown more attention than necessary, such as holding phone 2-3 times a day, and caused Nonparty 2 to suffer severe pain. The Plaintiff’s act goes beyond the scope of simple farming or friendly behavior permitted by social norms, and thus, it is reasonable to deem that the Plaintiff’s act is an act infringing on the Plaintiff’s personality right.

Thus, the plaintiff made the above speech and behavior to the nurse, thereby impairing the dignity of the defendant medical center's staff and causing social controversy, and this constitutes a ground for disciplinary action under Article 47 (3) of the personnel regulations of the defendant medical center.

B. Whether disciplinary proceedings are lawful

According to Article 6 of the personnel regulations of the defendant Medical Center, the number of members of the personnel committee is at least five and seven, and among them, three ex officio members are appointed by the director of the defendant Medical Center (the chief of the management department, the chief of the general affairs team, and the chief of the labor union). Despite the fact that the number of members can be appointed by the director of the defendant Medical Center, the director non-party 1 additionally appointed four members in addition to the appointed members of the previous four with the intention to be subject to disciplinary action against the plaintiff. Therefore, the above additional appointment is null and void. Meanwhile, the personnel committee held on September 7, 2001 attended only two of the existing appointed members and the quorum for disciplinary action is insufficient, the dismissal resolution is null and void due to the error in the above procedure. In addition, even at the reexamination committee held on September 26, 200 of the same year, the committee did not prepare a report of reexamination and a written decision of reexamination and send it to the plaintiff.

Therefore, it is insufficient to recognize the above facts consistent with the plaintiff's above assertion, Gap evidence 6 and Eul evidence 10-9 only, and there is no other evidence to acknowledge them. Rather, according to the evidence Nos. 5-1, 2, 3, Eul evidence Nos. 1-2, 3, 4-1, 5-2, and Eul evidence Nos. 6, the above non-party Nos. 1 was not a member of the medical examination and treatment committee and the head of the nursing support committee, the head of the nursing support team, the nursing support team leader, the manager of the above 20-day training team, and the manager of the above 4-day training team to dismiss the plaintiff's new appointment and the defendant Nos. 1, 2, 3-2, and 5-2, the above non-party Nos. 4 and the defendant Nos. 5-2 were not a legitimate opportunity to review the plaintiff's new appointment and the defendant Nos. 2. The plaintiff Nos. 97.

(c) Appropriateness of disciplinary action (whether it deviates from the discretionary authority);

"Justifiable reason" in the dismissal of a disciplinary action against a worker refers to the case where there is a reason that an employer is responsible for the worker to the extent that the employer is unable to continue the employment relationship by social norms. Meanwhile, in the employment rules, if the disciplinary action for the same reason is prescribed and various kinds of disciplinary actions are possible, the choice of a disciplinary action among them belongs to the discretion of the authorized authority. However, such discretion does not belong to the arbitrary and convenient nature of the authorized authority, there is a need for a balance that is deemed reasonable by social norms between the grounds for the disciplinary action and the disciplinary action, and the imposition of harsh sanctions against a minor disciplinary action is null and void as an abuse of the right of disciplinary action (see Supreme Court Decisions 90Da20428, Oct. 25, 1991; 91Nu584, May 22, 1992, etc.).

In light of the above, the plaintiff's behavior to cause a sense of sexual humiliation to the nurse as seen in the above, the plaintiff expressed an excessive interest to a certain nurse, such as talking with telephone several times a day, causing a severe pain to the nurse, and the nurse demanded disciplinary action against the above speech and behavior of the plaintiff, it is judged that a certain degree of disciplinary action against the plaintiff is inevitable.

However, the plaintiff's sexual words and actions against the nurse such as "I am well in management of the model body, I am well in good faith," "I am sloak," or "I am am sloak so I am am sloak" do not seem to be serious even if they could cause sexual humiliation to the nurse, and it seems that the plaintiff did not contact with him or her any sloak sexual expression. The plaintiff seems to have made several calls to the non-party 2 on several occasions, but it is hard to say that the plaintiff's sexual words and actions against the non-party 1, such as "I am well in sloak" or "I am well in sloak," or "I am am sloak" are hard to say that the plaintiff's sexual expressions or actions against the non-party 2 were not subject to disciplinary action, and it does not seem to be invalid because the plaintiff's sexual words and actions against the defendant 2 were not affected by the disciplinary action against the plaintiff."

4. Occurrence and recognition scope of liability for damages; and

A. As seen earlier, the dismissal disposition against the Plaintiff is null and void, barring any special circumstance, the employment contract between the Plaintiff and the Defendant Medical Center still remains valid, and even if the Plaintiff was unable to provide labor due to the above dismissal disposition, it is due to the body of receiving the Defendant Medical Center, and thus, the Defendant Medical Center is obligated to pay the Plaintiff wages that the Plaintiff would have been entitled to have actually worked.

B. As to this, the Defendant asserts that the income should be deducted since the Plaintiff received a dismissal disposition from the Defendant Medical Center, and then obtained the income by treating the psychotropic clinic as a whole.

In light of the above, since the profit accrued to an employee dismissed due to a cause attributable to the employer falls under the profit accrued from the discharge of his/her obligation under Article 538(2) of the Civil Act, the above profit may be deducted from the amount of his/her wage when he/she pays the above worker the wages during the period of his/her dismissal (see Supreme Court Decision 90Meu25277 delivered on June 28, 1991). Meanwhile, Article 45 of the Labor Standards Act provides that the employer shall pay 70/10 or more of his/her average wage during the period of suspension when the employer suspends his/her business due to a cause attributable to the employer in order to guarantee the minimum living of the worker, and the suspension of business here includes the case where the employee refuses or is unable to provide his/her employment against his/her will despite the intention to provide his/her labor according to the labor contract. Thus, the above deduction cannot be subject to the deduction of interim allowance within the scope of business suspension allowance under Article 45 of the Labor Standards Act (see the above interim allowance).

In this case, the plaintiff's average wage at the time of the above dismissal is 7,628,60 won per month and there is no dispute between the parties. According to Gap evidence 10-7 and Gap evidence 16, the plaintiff opened a hospital from November 23, 2001 to Bupyeong-gu Incheon Bupyeong-gu. The plaintiff operated the above hospital and received income of 37,59,980 won per year of 202, there is no counter-proof. Thus, from November 23, 2001, the plaintiff was dismissed from 60 won per month of 3,129,98 won per month (37,59,980 won per month until 206, 208 won per month of 60 won per month, 200 won per month of 60, 360 won per month of 20, 360 won per month of 20, 760% of the above amount per month of 7.8% of the above amount per month.

5. Conclusion

Therefore, the defendant's dismissal disposition against the plaintiff on September 11, 2001 shall be deemed null and void, and the defendant shall be obligated to pay to the plaintiff the amount equivalent to the wages of 7,196,63 won per month from September 12, 2001 to November 22, 2001, and the amount equivalent to the wages of 5,340,020 won per month from November 23, 2001 to the time the plaintiff is reinstated. Thus, the plaintiff's claim of this case shall be accepted within the extent of the above recognition, and the remaining claims shall be dismissed as it is without merit. It is so decided as per Disposition.

Judges Lee Dong-won (Presiding Judge)