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[Recent Court Case 1] The employee’s filing of complaint or reporting on the representative, manager, or colleagues at the workplace are not deemed the grounds for disciplinary actions by the reason that the investigative agency made a decision to not prosecute.

2020.08.20

[Case No. Supreme Court Decision 2018Du34480 dated Aug. 20, 2020] 
 
In this case, the court found that the facts that an employee, who was a leader of the labor union at a national university (“Employee”), filed several complaints and petitions against the president and employees of the university and that the investigatory agency made a decision not to prosecute do not provide for the complaints or petitions to be the grounds for disciplinary action. 
 
The national university was the plaintiff (the “Plaintiff”), and the Employee was a third party intervenor for the defendant. From April to September 2014, the union at the university (the “Union”), which was not a party to the lawsuit, filed complaints and reports against the president (the “President”) and the managers of the university, including (i) reports on the university and the related persons on charges of embezzlement and breach of fiduciary duty in the course of business; (ii) reports on charges of bribery; (iii) reports on charges of failure to pay overtime allowances and compensation for unused annual leave to 64 employees, including the Employee, and of the working hours exceeding the limit of 52 hours per week; (iv) reports on the grounds that the University controlled and intervened in the operation of the union; and (v) complaints on charges of sexual harassment. As to these charges the investigative agency made the decision to not prosecute. 
 
The Plaintiff then dismissed the Employee, who was the union leader, on the grounds of having gone on a “filing spree of complaints and reports” by repeatedly filing complaints and reports with the Korean Prosecution Service against the Plaintiff’s President and employees for embezzlement and breach of fiduciary duty in the course of business, violation of the Act on the Aggravated Punishment, Etc. of Specific Crimes, violation of the Labor Standards Act, violation of the Trade Union and Labor Relations Adjustment Act, and sexual harassment based on groundless and false claims with the intent to slander the colleagues. The Employee protested against the dismissal and filed the case with the local labor relations commission and the National Labor Relations Commission. When the labor relations commissions issued decisions in favor of the Employee, the Plaintiff objected to the decisions and filed a lawsuit in this case. The court of first instance acknowledged that “the indiscriminate filing of complaints and reports by the Employee would constitute valid grounds for a disciplinary action,” yet found that, “this act, however, could not be deemed a malicious false accusation based on false information and there was not clear circumstantial evidence supporting that there were conflicts between the Plaintiff and the employees or that the trust between the management and the union was damaged from the act.” The court of first instance therefore found the case against the Plaintiff. The appellate court, on the other hand, found that “the indiscriminate filing of complaints and reports alone would constitute the grounds for liability to the extent the employment contractual relationship with the Plaintiff could not continue in light of the social norms,” and that “the grounds for the disciplinary action, in light of the social norms, would not be deemed to be substantially unreasonable and would not constitute abuse of discretion delegated to the disciplinary authority.” The appellate court therefore overturned the lower court’s decision and rendered a decision in favor of the Plaintiff. 
 
The Supreme Court acknowledged that “an employee’s act of making a false statement or distorting facts without clear evidentiary materials to file complaints, reports or petitions to the investigative agency against the representative, managers, or colleagues at the workplace could be the grounds for disciplinary actions as prescribed under the disciplinary policies,” yet held that “since filing complaints or reports to seek punishment on an act suspicious of a crime would be a lawful exercise of right to the extent it is based on reasonable grounds, the investigatory agency’s decision to not prosecute would not provide for the complaints or reports to be the grounds for a disciplinary action.” The Supreme Court added that “even if the complaints or reports filed to the investigative agency by the labor union or union representative against the employer for violations of the Labor Standards Act or the Trade Union Act were to contain some exaggerated or distorted parts, the complaints or reports would be within the justified scope of activities of the labor union as long as they are mainly based on facts and intended to prevent the employer’s infringement of the union members’ right to organize or to ensure the employer’s compliance with laws and regulations related to the working conditions.” 
 
Based on these findings, the Supreme Court found that the Employee’s filing of complaints and reports against the representative, manager, and employees on five separate occasions was “a lawful exercise of the right to seek punishment of an act suspicious of a criminal activity as well as a valid union activity” and therefore issued a decision finding that “the Employee’s filing of complaints or reports would not be deemed the grounds for a disciplinary action by the reason that the investigative agency decided to not prosecute.” 
 
As a consequence, the Supreme Court overturned the lower court’s decision and remanded the case to the lower court.

Newsletter_Labor & Employment [Recent Court Case 6] The gathering and protest of the subcontractor’s employees at the contractor’s business premises as part of the action taken in a labor dispute against the subcontractor are a justifiable act not in violation of the social norms. 2020.09.03

Newsletter_Labor & Employment [Recent Court Case 5] The employees responsible for the activities other than HR, compensation, benefits, or labor relations at the level of manager or higher rank should be eligible to join a union. 2020.08.19

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