[영문판례]
Case on the Constitutionality of the Provision that Excludes Daily Employed Workers Who Have Been Employed for Less Than Three Consecutive Months from Being Notified in Advance of Their Dismissal
[2016Hun-Ma640, May 25, 2017]
In this case, the Constitutional Court held that Item 1 of Article 35 of the Labor Standards Act, which prescribes that daily employed workers employed for less than three consecutive months need not be notified of their dismissal in advance, does not infringe the complainant’s right to work.
Background of the Case
On June 9, 2016, the complainant signed a day labor contract with ○○Inc. to work as a kitchen assistant from June 9, 2016, to July 8, 2016, receiving a daily wage of 70,000 won. After fulfilling this service, the complainant agreed with the abovementioned company to work from July 8 through 12, 2016, but was dismissed on July 9, 2016, and no longer went to work after this date.
The complainant was unable to receive the payment in lieu of notice as prescribed by Article 26 of the Labor Standards Act, being subject to the exception provided by Item 1 of Article 35 of the same Act, which waives the obligation of employers to notify “a daily employed workerwho has been employed for less than three consecutive months” of his/herdismissal in advance. Thereupon, the complainant filed a constitutionalcomplaint on August 1, 2016, claiming that Item 1 of Article 35 of the Labor Standards Act is unconstitutional for infringing upon the complainant’sfundamental rights.
Subject Matter of Review
The subject matter of review in this case is whether Item 1 of Article
35 of the Labor Standards Act (wholly amended by Act No. 8372 on April 11, 2007) infringes the fundamental rights of the complainant. The Instant Provision reads as follows:
Provision at Issue
Labor Standards Act (wholly amended by Act No. 8372 on April 11, 2007)
Article 35 (Exception of Advance Notice of Dismissal)
The provisions of Article 26 shall not apply to a worker falling under any one of the following items:
1. A daily employed worker who has been employed for less than three consecutive months.
Summary of the Decision
The right to work not only includes the right to an occupation, but also the right to fair working conditions. This right intends to prevent the breach of human dignity, and includes the right to demand that a healthy working environment, just remuneration, and reasonable terms and conditions of work be guaranteed. The provision on advance notice of dismissal compels an employer to notify a worker of his or her dismissal in advance, which constitutes an important element of the terms and conditions of work and is part of the right to work. The terms and conditions of work are determined by the benefits and consideration provided by the state, such as the realignment of legislation to improve working conditions. Therefore, the details of the provision on advance notice of dismissal, including the scope of workers affected by the provision, and the length of advance notice the worker must be given, should be left to legislative discretion.
When temporary or based on a short-term contract, the provision of labor services does not incur any expectation or confidence that such labor will be continuously provided. Therefore, the nature of advance
notice of a dismissal presumes that the worker provides labor while continuing to be employed by the employer beyond a certain period. However, as a rule, the employment relationship of daily employed workers is terminated when the daily contract period ends, without involving a dismissal procedure. Thus, by nature, there is a sufficient reason to accept that such workers are an exception to the provision of advance notice of dismissal. However, workers that provide labor for at least three months cannot be deemed in a temporary employment relationship, and are treated equally to regular workers in terms of the application of the Income Tax Act or the Industrial Accident Compensation Insurance Act.Therefore, we cannot say that requiring a minimum of three months for treating daily employed workers and regular workers equally, regardless of the type of labor contract, is a significant deviation from the scope of legislative discretion. Furthermore, the current provision on advance notice of dismissal prescribes that the employer shall give the worker at least 30 days’ advance notice of dismissal, or pay that worker at least 30 days’ ordinary wages, should he or she fail to give such notice. Requiring this would be highly unfavorable to employers if applied to the dismissal of workers who have not worked for at least three consecutive months since signing their day labor contract. This also shows that the Instant Provision has not significantly deviated from the scope of legislative discretion.
Thus, the Instant Provision does not infringe the right to work.