2. Of the costs of the lawsuit, the part resulting from the participation is borne by the Intervenor joining the Defendant, and the remainder is borne by the Defendant.

The following facts do not conflict between the parties, or may be acknowledged by adding to the whole purport of Gap evidence Nos. 1-2, Gap evidence Nos. 2-3, Eul evidence No. 1, 7, 8, and 9, and Eul evidence Nos. 4 and 6, each part of Gap evidence No. 1-2, Gap evidence No. 2-3, Eul's evidence No. 1, 7, 8, and 9, and Eul evidence No. 4 and 6 which can be established

A. The Intervenor joining the Defendant (hereinafter referred to as the “ Intervenor”) was a doctor qualified as a medical specialist outside the ordinary course in 1963, and was dismissed on July 27, 1994 on the ground that the Plaintiff was employed in the emergency room of the sericultural Hospital, which is a general hospital operated by the Plaintiff, on Sundays instead of being on a one-day one-day one-day one-day one-day one-day one-day one-day one, and was employed as a night watch doctor from 1800 to 090 the following day, and was paid the pay of KRW 4,00,000 per month in proportion to the number of working days on the 30th day of the same month, which was three days after the date on which the Plaintiff began to work, and was employed, on the ground that the Plaintiff was not disqualified

B. Accordingly, the intervenor filed an application for remedy with the Seoul Regional Labor Relations Commission on August 2, 1994 under the provision of Article 27-2 of the Labor Standards Act on the premise that the above measure of dismissal is unfair against the plaintiff who is an employee. The above Regional Labor Relations Commission dismissed the plaintiff's application for reexamination on September 1, 1994 on the ground that the intervenor's dismissal of the intervenor is unreasonable, while the plaintiff's dismissal of the intervenor is recognized as unfair, the plaintiff must be restored to the original position without delay and pay the amount equivalent to the wages which the plaintiff could have received during the period of the dismissal. However, the plaintiff appealed against the above determination and remedy order, and the defendant dismissed the plaintiff's application for reexamination on October 25, 1994 (hereinafter referred to as "the plaintiff's request for reexamination").

2. Whether the decision on the retrial of this case is lawful

(a) Whether the worker is a worker during the period of temporary employment;

An intervenor, who is a medical specialist with expertise in alcohol and performs his/her duties independently under his/her own responsibility without receiving a specific command on the details and methods of diagnosis for patients, but once he/she enters the work system of a sericultural hospital operated by him/her for the plaintiff, who is the business owner, and provided labor and received wages according to working hours, the intervenor shall be deemed as a worker under Article 14 of the Labor Standards Act with substantial subordinate relationship between the plaintiff and the hospital manager.

However, the plaintiff asserts that the ruling of the retrial of this case, which judged the legitimacy of dismissal under the premise that the intervenor was regularly employed even during the trial period, is unlawful. Therefore, it is first problem whether the intervenor is still in the trial period or not.

In light of the above evidence and evidence Nos. 5-1, 2, and 6-1, 7-1, 2, and 8-2, and the testimony of the Plaintiff’s 16-2 and the 4-6-2-2-2-2-2-3-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-2-3-2-2-2-3-2-2-2-2-2-3-2-2-3-2-2-2-2-3-2-2-4-2-2-3-2-3-2-3-2-3-2-3-2-4-2-3-2-3-2-3-2-3-3-2-3-3-3-2-3-3-3-3-3-2-3-3-3-3-3-3-3-3-3-3-3-3-3-

(b) the legitimacy of dismissal;

The probationary system is a system that sets a probationary period in order to determine the vocational ability of the worker concerned on the premise of a fixed employment before establishing a conclusive employment relationship, and has a function to alleviate restrictions on dismissal because it is a system that sets up a certain period of reservation to determine the conclusion of a conclusive employment contract. However, as in the case of a fixed employment, the labor contract relationship has been established as the same as in the case of a fixed employment, so the "justifiable reason" as stipulated in Article 27 of the Labor Standards Act should be established in the case of dismissal. However, if there is a reasonable reason to refuse fixed employment due to a negative evaluation of vocational ability or job eligibility, the dismissal shall be possible.

돌이켜 이 사건에 관하여 보건대, 앞서 믿은 증거들에 의하면, 참가인은 1994. 7. 27.부터 같은 달 29.까지 3일간 매일 18：00부터 다음 날 09：00까지 위 병원의 응급실에서 근무함에 있어서 발목관절환자, 복통환자, 동맥파열환자, 뇌출혈환자 등을 처치하는 과정에서 미숙한 점을 보여 담당 간호원들로부터 불신을 받게 되었고, 한편 간호사들의 태도가 무례하다고 느낀 나머지 그들에게 욕설을 하기도 하고 환자들의 면전에서 그 중 한 사람인 소외 한정희 머리를 손으로 치기도 하였으며, 그로 인하여 간호원들이 참가인과의 근무를 집단적으로 거부하는 사태를 일으켰고 근무도중 자주 응급실을 떠나 외래진료과에 가서 휴식을 취하면서 환자에 대한 응급진료를 지체하는 바람에 기다리던 환자 및 보호자로부터 불만을 샀고 그 중 일부 환자는 진료도 받지 아니한 채 그냥 돌아가기도 한 사실, 원고는 응급실 소속 간호사들 및 원무과 소속 직원들로부터 참가인의 근무능력이 부실하다는 보고를 받고 3일째인 1994. 7. 29.에는 직접 응급실에 나가 참가인과 함께 진료를 실시하면서 참가인의 업무수행 상황을 관찰하여 본 결과 근무태도·능력·체력 등의 여러 면에서 참가인이 응급실근무자로서 부적격하다고 판단하여 결국 참가인을 위와 같이 해고한 사실을 인정할 수 있고, 위 인정에 반하는 을 제4, 6호증의 각 일부 기재는 믿지 아니하고 달리 반증 없다. 위 인정 사실에 의하면 참가인은 고령인 나머지 체력소모가 각별히 요구되는 응급실 야간당직업무를 제대로 감당하지 못하여 간호사와 사이에 심각한 분쟁을 일으켰을 뿐만 아니라 응급실을 찾아 온 환자들에게 적절한 진료를 시행하지 못하였는바, 이러한 근무내용은 시용기간 중에 있는 참가인에게 응급실 야간당직의로서의 업무적격성이 없다고 판단하여 정식채용을 거부할 만한 합리적인 이유가 있는 경우에 해당한다고 할 것이므로, 그를 이유로 참가인에 대하여 원고가 한 위 해고는 정당하다고 할 것이다.

3. Conclusion

Therefore, since the defendant's decision on the retrial of this case based on the premise that the dismissal of the plaintiff's intervenor was made without any justifiable reason is illegal, the plaintiff's claim of this case is justified, and the costs of lawsuit are assessed against the losing party. It is so decided as per Disposition.

Judges Lee Jong-hun (Presiding Judge)