Standard Guide: In choosing a type of disciplinary punishment, an employer shall first review the employee’s previous attitude, performance results, and severity of the violations (Supreme Court ruling on Feb 12, 2004: 2003du127578).



[Dismissal after Refusing to Resign]

1. Company E dismissed a full-time union officer (hereafter referred to as “the Employee Concerned”) for violence towards his senior manager. In his belief that he was dismissed unfairly, the Employee Concerned filed a remedy application with the Regional Labor Relations Commission on March 6, 2006. The Regional Labor Relations Commission determined on July 21, 2006 that the dismissal was unfair, judging that it was too severe a punishment for the charge. In opposition, Company E, with legal support of a labor attorney, appealed to the National Labor Relations Commission on August 7, 2006 to repeal the judgment.

2. The Employee Concerned entered Company E’s newsletter editorial office on the 8th floor of its Head Office building at 12:20 PM (lunch time) on January 17, 2006. There he distributed union newsletters to female employees of the editorial team against the will of the editorial manager (who is handicapped). In anger, the editorial manager ran after the Employee Concerned in the corridor to reprimand him. In this process, the Employee Concerned grabbed and took the editorial manager down the stairs by force. As a result, the editorial manager slipped and fell down the steps between the 7th floor to the 6th floor, which caused him injury that required 6 weeks of medical care. To handle the situation, the company formed a disciplinary committee and dismissed the Employee Concerned.


I. The Verdict (First Judgment) of the Regional Labor Relations Commission

1. The major points of the case depend upon whether violence took place, and whether the dismissal was appropriate in the severity of punishment and disciplinary process. Considering these factors, the following conclusion has been drawn, on the basis of the opinions of both parties, evidence submitted, and content of the judgment hearing.

2. The Employee Concerned insisted that the union officers and he were verbally attacked with abusive language and assaulted by the editorial manager while they were distributing the union newsletters in the editorial office at 12:20 PM, during lunch time on January 17, 2006. However, a review of medical records, a witness statement, and summary deposition (financial penalty) indicates there was violence made against the editorial manager. Given these facts, Company E’s disciplinary action for this case is justifiable.
3. However, considering that the Employee Concerned was a full-time union officer in charge of union activities and operations, and the incident occurred while conducting union activities during lunch time on Jan 17, 2006, and the manager’s injury was not serious enough for dismissal, the disciplinary action cannot be accepted fair although its process is justifiable.


II. Employee’s Claim

1. This incident is not a case of a lower-ranking employee inflicting violence on his senior manager, but a case in which union members have been interrupted during their union activities. Moreover, the union members were verbally assaulted by the editorial manager who had always disliked the union even when its members were conducting lawful union activities under the protection of current labor laws. The incident occurred in response to the editorial manager’s abusive language and behavior towards female union officers. The Employee Concerned was trying to keep the manager from pushing his female colleagues on their shoulders.

2. The injury incurred on the manager was not only exaggerated but occurred largely in part because the editorial manager chased after the union officers on the stairs. Even though the Employee Concerned and the union officers tried to prevent conflict, the editorial manager acted in a provoking manner. As a result, he lost his balance and slipped and fell down the stairs. The company held a disciplinary meeting and rendered too severe a punishment. The Concerned Employee’s dismissal is evidently unfair and was rendered without justifiable reason. This case is in a line of continuous disciplinary actions taken by the Company against union officers and members under hostile relations with the labor union. Hence the dismissal of the Employee Concerned is unfair practice because the Company tried to weaken union activities and interfere with and dominate operations of the labor union.


III. Company E’s Claim

1. Upon investigation, the Employee Concerned intruded into an off-limits office of the Company without prior notification or permission to distribute union newsletters. The Employee Concerned engaged in violence twice with the editorial manager who reacted against the prohibited entrance. The editorial manager suffered an injury that required six weeks’ medical treatment. He has received medical treatment until recently and will be making regular hospital visits to receive pain treatment for the next six months.

2. The editorial manager, who is the victim in this case, is legally identified as a 1st level, severely handicapped person who has no resistant capability. Due to his speech impediments, he carries a notebook with him to convey effective communication in case of very important conversations. He can hardly walk on stairs due to polio, and his right leg, which is one third of his left leg in thickness, provides subsidiary support to the weight of his body. The Employee Concerned dragged the editorial manager from the stairs on the 8th floor, grabbing his belt and collar in an attempt to take him to the union office located on the 5th floor. The purpose was to discipline the editorial manager who yelled at the union chairman without thinking. Even when it was evident the editorial manager could no longer support himself at the top of the 6th floor stairs while being dragged down by force, other full-time union officers showed negligence and failed to intervene. The editorial manager finally collapsed and fell down the stairs as a result of the violent behavior of the Employee Concerned. He was particularly very humiliated that he was assaulted in front of his subordinate employees. Due to injury and pain from this incident, the manager has been taking painkillers and relies on poultices to relieve pain.

3. In compliance with company procedures, the Employee Concerned is technically still a non-titled employee even though he is currently a full-time union officer, and has been in employment for five years including irregular employment. In contrast, the editorial manager is a very senior employee who has been promoted to general manager through his 19 years of employment. The victim is also twelve years senior to the Employee Concerned in age.

4. In summary, this case is certainly unprecedented and reveals an act of incomprehensible violence. In review of the fact, including obstructive behaviors, overpowering of a senior employee by juniors, and merciless violence inflicted upon the handicapped, the dismissal is justifiable.


IV. Decision of the National Labor Relations Commission

1. Considering the claims of both parties during the appeal process, records of the Regional Labor Relations Commission, and content of the judgment hearing, the judgment is as follows. The Employee Concerned argued that his dismissal was unfair because the editorial manager lost his balance and fell by himself, and the Company exaggerated the account of assault by the Employee Concerned.
2. However, a comprehensive review of all the factors shows that the Company’s decision to dismiss the Employee Concerned is not too severe. In terms of socially accepted ideas, the actions of the Employee Concerned are too wrongful to continue employment with the Company. First, the editorial manager collapsed on the stairs while the Employee Concerned was attempting to drag the editorial manager to the union office, by means of grabbing his belt and collar. This resulted in a serious injury to the manager that requires six months of pain treatment. Second, the editorial manager is legally classified as a 1st level, severely handicapped person who has low capacity to handle dangerous situations, has limited communication skills, and cannot work comfortably due to polio. Third, dragging a person down the stairs by grabbing his belt and collar is clearly an act of force and violence. Fourth, the manager was humiliated terribly in front of his subordinates by the Employee Concerned who is 12 years his junior in age.

3. In conclusion, we repeal the relief order of the Regional Labor Relations Commission which previously ruled that this dismissal was unfair and too severe a punishment. Thus, we deny the remedy application for unfair dismissal.


[Dismissal Due to Illegal Group Activities]

“S” Construction Company (hereinafter referred to as “the Company”), with 40 employees, turned its main business to foreign markets as it became more and more difficult to win contracts in the domestic construction market due to a long-term economic recession, and in March and April 2009, the Company won turnkey subcontracts for two projects (worth USD 10 million) in Saudi Arabia. The Company assigned 12 employees to Saudi construction sites and worked to complete the construction, but were unable to do so by the time scheduled, due to a lack of overseas construction experience, which caused a loss of about 5 billion won as calculated by the total time required to complete the building. If the construction were to be completed at such a slow pace, the Company would face damages of up to 12 billion won. On April 16, 2010, the Company handed over the rights necessary to perform the construction and direct supervision over their 12 employees to a contractor which had significant foreign market experience. At this announcement, 8 of the 12 employees formed an emergency committee, and, dissatisfied by the changes, demanded the Company disclose the details of the contract between the Company and the contractor, collectively refusing to come to work from May 1st, 2010, if the Company failed to do so. The Company issued a warning that they would be fired if they carried out their threat, and when the employees did not show up for work after May 1st, 2010, the Company held a disciplinary action meeting and dismissed the 8 employees, who returned to Korea and applied for remedy from the Labor Commission.


I. Employee Claims

1. General Situation

The employer visited the Saudi construction sites on April 16, 2010, and 1) blamed on-site employees for the company having to spend more on construction than expected due to their lack of skill, 2) commissioned the contractor with authority for all work related to the Saudi construction, and 3) ordered on-site employees to accept supervisory control and directions from the contractor. On April 24, 2010, the contractor issued orders that placed Company employees on their organization chart. The following day, they issued another order that said, “Assigned daily duties shall be completed without exception, even if you are required to work all night.”

Since the employees felt this order left them unreasonably vulnerable to dismissal, they agreed to send questions to the Company as a group, but the Company did not give answers they felt were acceptable. Then, claiming that the Company’s personnel orders were unfair and without employee consent, the 8 employees stayed in their Company quarters, refusing to accept instructions from the contractor from May 1, 2010. In response, the head of the contracting company visited the 8 employees and informed them that if they did not return to work, he would have them deported. As the employees continued to refuse to return to work on May 2nd, the contractor applied for an exit visa. The Company then announced that all 8 employees would be fired if they did not return to work by 9 am on May 3, 2010, but still the employees did not show up. Instead, they boarded an airplane at 1 pm on May 3rd in accordance with the exit visa, with airplane tickets arranged by the contractor. At the same time the employees were boarding the plane, the Company held a Disciplinary Action Committee and dismissed the 8 employees.

2. Violation of Reasonable Severity of Punishment

The Company commissioned all on-site operational rights to the contractor, along with rights to move on-site personnel, which falls under a company’s rights to move personnel. Any movement of personnel shall require agreement of the person(s) concerned, but the Company did not receive such agreement. Accordingly, there was no reason for the employees to follow the contractor’s orders. Also, the Company’s rules of employment stipulated that the Company could only dismiss employees who have been absent for 15 days or more. Nevertheless, the Company dismissed the employees for an absence of only two days, disciplinary action which is too severe to accept as reasonable.

3. Faulty Disciplinary Process

While the Company held a Disciplinary Action Committee hearing at 1 pm on May 3, 2010, they did not follow the principle of giving the employees an opportunity to explain their violations. Deprivation of the employees’ right to explain things makes the disciplinary process faulty.


II. Employer Claims

1. Justifiable Personnel Orders from the Company

The Company’s orders were unavoidable due to business necessity and they made a justifiable managerial decision. About three months ahead of the Terminal construction deadline, the client and auditing company had already issued repeated demands for contingency plans from the Company, which was dealing with delays in construction and increasing costs that it could not deal with by itself, ignorant as it was of on-site situations. So, it was absolutely necessary to receive the assistance of the contractor who had performed construction projects in that locality for years.

2. Illegal Group Activities

While expressing worries about the collective behaviors of the employees concerned and answering their questions, the Company tried to persuade them of the necessity of bringing in an outside contractor to the construction project, up until they collectively started refusing to work on May 1, 2010. The employees expressed opposition to bringing in an outside contractor, and demanded to know the details of the agreement made with the contractor. As for this, the employer, the managing director, the on-site construction manager, and even the director of the contracting company tried to persuade the employees to come back to work, but they did not return. Ultimately, the Company notified the employees that if they did not return to work by 9 am on May 3, 2010, the Company would take disciplinary action. Each of the employees concerned refused to the end the Company order to return to work.
3. Justification for Procedures

After receiving a report from the on-site manager that the employees concerned had rejected the Company’s final order to return to work on the morning of May 3, 2010 and were getting ready to return to Korea, the Company started taking disciplinary action. As there were no specific rules for the composition of a disciplinary committee, the Company held a disciplinary meeting with three registered directors (including the representative director) and decided to dismiss the employees. Concerning the provision stipulated in the rules of employment that employees be given “opportunity to explain”, the Company considered this situation to be an exceptional case where the employees concerned could not come to the disciplinary committee for unavoidable reasons. According to a related judicial ruling, if the Company had provided enough opportunities for the employees concerned to explain their actions, or if their opinions had been reflected sufficiently in the disciplinary hearing, a decision to dismiss them would have been acceptable despite their absence.


III. The Labor Commission’s Decision

1. Justifiable Reasons for Disciplinary Action

“As long as disciplinary reasons and types of disciplinary action related are stipulated in the Rules of Employment, disciplinary action implemented accordingly are acceptable, unless they violate the good-faith principle or are an abuse of rights. When the employee’s misbehavior falls under the reasons for dismissal as stipulated by the Rules of Employment, dismissal according to the Rules is justifiable.” (Supreme Court 91 da20173)

The employer was in danger of suffering large losses on two Saudi building construction projects, so decided that contracting a company with more experience would be best, as well as handing over all rights and responsibilities of construction, including direct control of the employees concerned. 1) In this process, the employer visited the Saudi construction sites, explained the situation and expected their cooperation. 2) However, the employees formed an emergency committee and sent a letter of complaint informing the employer that the possibility existed that they would refuse to provide labor service from May 1, 2010. 3) The employer, technology director, and director of the contracting company answered employee questions truthfully and tried to persuade them to offer willing cooperation in order to help the Company overcome its crisis and complete the construction. 4) In reality, the 8 employees refused to provide labor service from May 1, 2010 to the day they returned to Korea on May 3. Upon consideration, these 4 items are justifiable reasons for disciplinary action.

2. Justification of Disciplinary Process

“Before any employee discipline was decided upon, the Employee visited the president, managing director, personnel manager, etc. and explained the details of the incident subject to discipline. In doing this, he experienced all processes related to disciplinary action. Even though he was not asked to attend the disciplinary hearing, the fact that disciplinary decisions were made without his presence is acceptable.” (Supreme Court 90da143983)

1) After meeting with the employer, technology director, and director of the contracting company several times over 15 days, the employees knew that disciplinary punishment would follow if they collectively disobeyed the employer’s orders to return to work. 2) There was an urgent necessity to cope with this case as employee assembly and demonstrations are illegal and subject to police enforcement and prosecution in Saudi Arabia. 3) They knew their continuous rejection to go back to work could result in deportation. When reviewing the aforementioned items along with the above judicial ruling, the disciplinary process in this case seems strongly justifiable.

3. Justification for the Severity of Disciplinary Punishment

“If there is an admitted reason for disciplinary punishment, the kind of disciplinary punishment the employer shall apply is at the employer’s discretion. If the employer determines disciplinary action according to appropriate criteria for the severity of disciplinary punishment, unless such criteria are unreasonable, and if such application was not inappropriately used to dismiss particular employees, such disciplinary action is legal, and does not violate the principle of balanced application.” (Supreme Court 2007 du 7093)

The employees claimed that dismissal was too severe a punishment for only two days’ absence, considering that the rules of employment state that the Company can only dismiss employees who have been absent for 15 days or more. However, upon reviewing the following items, dismissal is not too severe a punishment. 1) The employees agreed that these two projects were the first the Company had won overseas, expected huge losses from these projects and faced a very difficult situation. 2) Even though the employer had visited the construction sites and tried to persuade the employees to help in overcoming the crisis, they did not work to find ways to minimize the damage while continuing to work. 3) The employees collectively refused to work.


IV. Conclusion

In this case of dismissal due to illegal group activities, the main points for discussion were 1) whether handing over authority to direct work is considered a right to move personnel or not, and 2) whether the Company gave the employees opportunity to explain their side in the disciplinary action hearing or not. First of all, the Labor Commission estimated that this case did not qualify as a right to move personnel, as claimed by the employers. In looking at the requirements to complete the construction projects, the contracting company’s direct orders to subcontractors are common business practices used by construction companies for operational necessities, and so this is different from movement of personnel. Also, while the employees were in Saudi Arabia, the employer held a disciplinary meeting without giving direct opportunity for the employees to explain their opinions. However, the employer had given employees sufficient time and opportunity to consult with him in advance, and this prior process was regarded to be implementation of the disciplinary process rule, ‘giving opportunity to explain’, as stipulated in the rules of employment.