Nullity of a disciplinary action and personnel order

Disciplinary action and personnel orders

Article 23, Paragraph 1 of the Labor Standards Act (Korean Labor Standards Act) stipulates that 'An employer shall not dismiss, suspend, discipline, transfer, reduce wages, or take other punitive measures against a worker without justifiable reason (hereinafter referred to as 'unfair dismissal, etc.')'. Such disadvantageous actions are commonly called disciplinary actions.

A disciplinary action is valid only if there is a justifiable reason and if it follows the lawful procedures set forth in the rules of employment, etc.

In contrast, a personnel order refers to a transfer or reassignment that is not stipulated as a disciplinary action in the rules of employment, etc. In principle, the employer has broad discretion.

However, since employers often impose de facto discipline in the form of personnel orders, case law determines whether a personnel order constitutes an abuse of discretion by comparing and balancing the disadvantage to the worker's livelihood against the necessity of the personnel order.

Facts

The defendant (the client) was an intercity bus company, and the plaintiff was a bus driver who operated a fixed route for the defendant.

In November 2018, while driving, the plaintiff exited the intercity bus terminal and was merging into the first lane when he violated his duty of care and collided with a vehicle driving in the first lane, causing property damage.

In March 2019, the defendant held a disciplinary committee and, in accordance with its disciplinary regulations based on the amount of damage, imposed a 25-day suspension on the plaintiff.

Meanwhile, in June 2019, the defendant reduced the number of older vehicles to comply with the 52-hour workweek system, and the plaintiff's vehicle was included in the reduction. As a result, the plaintiff was transferred from a fixed-duty driving position (driving a specific vehicle with fixed routes and hours) to a substitute-duty driving position (driving routes when fixed-duty drivers are absent due to vacation, etc.).

In response, the plaintiff filed a lawsuit to confirm the nullity of the 25-day suspension, arguing that the accident amount had not been properly substantiated, and that the personnel order amounted to discipline without justifiable reason and without lawful procedure, and was therefore null and void.

Lawyer Joo Youngjae's assistance

With respect to the plaintiff's claims, lawyer Joo Youngjae argued

(1) In the case of the 25-day suspension, the accident amount was properly substantiated and there were no defects in the disciplinary procedure; and

(2) In the case of the transfer to a substitute-duty driving position, it cannot be considered discipline, and even if the plaintiff suffered some disadvantage in his livelihood, the business necessity for the transfer was far greater, so the limits of discretion were observed.

The court's ruling

The court accepted lawyer Joo Youngjae's arguments, ruling that both the suspension and the transfer to a substitute-duty driving position were valid exercises of the right to discipline and personnel authority, and dismissed all of the plaintiff's claims.

This ruling became final upon the plaintiff's waiver of appeal.