(a) The effect of disciplinary dismissal, unless the rules of employment stipulate disciplinary dismissal as a means of disciplinary action (=effective)

(b) Whether it is possible to ex post facto convert the disciplinary dismissal into ordinary dismissal on the ground that the ground for dismissal of disciplinary action falls under the ground for ordinary dismissal;

A. In order for an employer to take disciplinary action, such as discipline, dismissal, etc. as a special disciplinary action, it shall be strictly stipulated by the rules of employment. Thus, a disciplinary action may be taken only by specifying the grounds for and means and kinds of disciplinary action as the content of the employment contract, and such provision under the rules of employment shall be interpreted as a limited order. Thus, if the rules of employment provide disciplinary action that is not specified as the means of disciplinary action, it is an invalid disposition that is not based

B. The disciplinary dismissal is a sanction against the violation of corporate order, which is distinguishable from the system. In fact, rather than simply giving monetary and economic disadvantages, it remains a special disadvantage resulting from a serious hindrance to re-employment. Thus, barring special circumstances, such as where an employer has expressed his/her intention of being subject to the initial disciplinary dismissal and having expressed his/her intention of being ordinary in the same offense, the declaration of intention to dismiss a disciplinary dismissal should be reviewed as a disciplinary action, and it should not be allowed ex post facto conversion into the so-called disciplinary dismissal and ordinary in the same offense, on the ground that the reason for disciplinary dismissal is an ordinary reason.

(a)Article 27 of the Labor Standards Act; (a) Article 94 of the same Act and Article 27-2 of the same Act;

Plaintiff

Freeboard

1. It is confirmed that the Defendant’s disciplinary dismissal against the Plaintiff on February 7, 1991 is null and void.

2. The defendant shall pay 4,208,000 won to the plaintiff and 263,000 won per month from June 1, 1992 until the plaintiff is reinstated.

3. The plaintiff's remaining claims are dismissed.

4. The costs of lawsuit shall be borne by the defendant.

5. Paragraph 2 can be provisionally executed.

The disposition of Paragraph 1 and the defendant shall pay to the plaintiff the amount of KRW 400,000 each month from February 1991 to the time the plaintiff is reinstated.

1. Basic facts

The following facts may be acknowledged if there is no dispute between the parties, or if Gap evidence 1, Eul evidence 3-1 to 7, and Eul evidence 5-2 to 8, and the whole purport of the pleadings are collected.

A. On June 12, 1990, the Plaintiff was employed by the Defendant at the same time as a practical instructor of the said driving school from that time, and was employed as the head of the said driving school trade union.

B. At around 18:30 on November 16, 191 of the same year, the plaintiff assaulted the above non-party on the ground that the non-party, who is a senior managing officer of the above private teaching institute, who was non-cooperatively engaged in the activities of the ordinary teachers' union, attempted to hold a meeting at that place, and did not promptly move at that place, and caused injury, such as a dunes 10,000, at the right 9, the right 4 weeks of treatment of the above non-party. Accordingly, the plaintiff was detained for violating the Punishment of Violences, etc. Act and was sentenced to a two-year suspended sentence of imprisonment from the Busan District Court on October 23, 191, and the judgment became final and conclusive on the 31st day of the same month.

C. Around January 191, 191, the defendant had the president of the above private teaching institute, etc. hold a personnel committee in accordance with the personnel regulations of the above private teaching institute. On February 7, 1991, the above personnel committee decided to immediately dismiss the plaintiff on the ground that the act of the plaintiff constitutes "a person who has been convicted of criminal punishment" under Article 64 subparagraph 9 of the Rules of Employment of the above private teaching institute and "a person who disturbs the order within the workplace" under the latter part of Article 11 and "a person who disturbs the order within the workplace." Accordingly, the defendant punished the plaintiff on the same day.

D. Until dismissal of the Plaintiff, the Plaintiff was paid KRW 263,00 from the Defendant on the 30th of each month as a salary.

2. Determination:

A. Part of the claim for nullification of dismissal

(1) The parties' assertion

The plaintiff's dismissal of the plaintiff by holding a personnel committee without the provision of the above shall be unfair in the procedure of disciplinary action and unfair in the grounds for disciplinary action. Accordingly, the defendant asserted that the above actions of the plaintiff fall under the grounds for dismissal as provided by the above rules of school employment, and it is justifiable to punish the plaintiff since the above actions fall under the grounds for dismissal as provided by the rules of school employment in Busan Special Metropolitan City and Metropolitan Cities.

(2) Determination on the legality of the dismissal of disciplinary action

(A) The so-called disciplinary action is an unfavorable measure in labor relations conducted by an employer against a company-order violator, which is separate from an ordinary means such as dismissal, transfer, or claim for damages, and in particular, a disciplinary measure is the most strong means during the disciplinary action, and has the characteristics of the disciplinary action and the aspects of ordinary dismissal. However, a disciplinary measure is not being paid, but may not be paid in whole or in part, but may not be paid in part, and above all, it is clearly obvious that a dismissed worker was subject to a disciplinary measure against a violation of order due to the non-honorary name of the "Disciplinary Action", thereby causing a significant disadvantage in re-employment.

However, if the contents of the rules of employment which clearly stipulate the contents of the contract to be applied to the whole workers of the business in question upon the request of a uniform and uniform decision have been widely known to and used by the workers in question, the custom, which is the fact that the working conditions between the employer and the workers are in accordance with the rules of employment, is established. Thus, barring any special circumstance, the working conditions stipulated in the rules of employment should be subject to the contents of the employment contract, and thus, the employer shall comply with the rules of employment strictly in order to take disciplinary action, such as disciplinary dismissal, etc., which is a special sanction, and Article 94 subparagraph 10 of the Labor Standards Act provides that the matters concerning commendation and sanction shall be stipulated in the rules of employment when the employer who ordinarily employs not less than 10 workers prepares and reports to the Minister of Labor.

(B) Therefore, an employer may take disciplinary action only by specifying the grounds for disciplinary action and the means or type of action, and such provision under the rules of employment should be interpreted as a limited order. Furthermore, according to the above points of view as to whether the dismissal of the defendant in this case is legitimate, the defendant's disciplinary action is stipulated in Chapter 1-2 of the Rules of Employment of the above Institute, but only Chapter 4 of the Rules of Employment, such as suspension from office, change of occupation, reduction of salary and reprimand, Article 88 as disciplinary action, Article 88 as a person who causes an accident within the workplace, damages or loses facilities within the workplace without intention or gross negligence, Article 2 of the Rules of Employment, Article 3 of the Rules of Employment provides that the defendant's disciplinary action against the plaintiff in this case shall not be subject to disciplinary action for more than 1 month, Article 6 of the Rules of Employment shall not be subject to disciplinary action, and the defendant shall not be subject to disciplinary action for more than 6 months (the defendant shall be subject to disciplinary action against the plaintiff in this case's order of dismissal or suspension from office without permission for more than 1 month).

(C) On this point, the defendant asserts that, even though the defendant's disciplinary dismissal against the family's disciplinary dismissal is illegal, the plaintiff's above misconduct constitutes a ground for ordinary dismissal under the above rules of employment, and that the defendant's payment of dismissal allowances under the above rules of employment was made for the plaintiff, at least the defendant's above disposition is valid as ordinary dismissal.

In light of the above, disciplinary action is a punishment for a violation of business order, and it is distinguished from the system. In fact, the disciplinary action is imposed not only simply giving monetary and economic disadvantages to workers, but also giving special disadvantages to the re-employment with serious obstacles. Thus, barring special circumstances, such as the employer's expression of intent to dismiss a disciplinary action as it constitutes a ground for dismissal of the same illegality at first and the same time constitutes a ground for dismissal of the same illegality, it shall be subject to the disciplinary action, and it shall not be allowed to change it to the ordinary dismissal of the so-called disciplinary action after it constitutes a ground for dismissal. The defendant's expression of intention to dismiss a disciplinary action shall be examined independently, and it shall not be allowed to change it to the ordinary dismissal of the defendant company after it constitutes a ground for dismissal. On the other hand, the defendant's expression of intention to dismiss the plaintiff is not sufficient to prove that the above disciplinary action is an ordinary dismissal of the defendant without any reason for dismissal.

B. Part demanding wage payment

As seen earlier, as long as the dismissal of the instant disciplinary action against the Plaintiff is null and void, the relevant employment relationship still remains valid. In light of the purport of Gap evidence No. 5 and arguments, the defendant submitted the Plaintiff’s disciplinary action to the personnel committee for disciplinary action, and rejected employment from the date of January 25, 1991 to the present time by asserting the validity of dismissal disposition against the Plaintiff. As such, the plaintiff’s employment obligation under the employment relationship between the plaintiff and the defendant could not be fulfilled due to the reason attributable to the defendant. Thus, the plaintiff can seek a payment of wages in return for the defendant. Since the defendant received 263,000 won from the defendant until the dismissal of the plaintiff, and the defendant received 263,000 won from the defendant on the 30th day of each month until the dismissal of the plaintiff, the defendant received from the plaintiff on the 30th day of February 1, 1991 to May 31, 192, 300, 3000 won and 406.6.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified only within the scope of the above disciplinary dismissal and the wage payment portion of the above recognition. Therefore, the remainder is dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices.

Judges Kim Tae-hun (Presiding Judge)