근로기준법위반등
The judgment of the court below is reversed.
Defendant shall be punished by a fine of KRW 3,000,000.
The above fine shall not be paid by the defendant.
1. The summary of the grounds for appeal (as to the violation of the Labor Standards Act due to unfair dismissal) G submitted a resignation notice to E Co., Ltd. (hereinafter referred to as “E”) on April 29, 2011, and accordingly the contract is terminated between G and E, and E does not dismiss G.
Even if E had dismissed G unfairly,
Even if G claimed the payment of retirement allowances to E, and E paid retirement allowances to G, there was an explicit or implied agreement on the termination of labor relations between G and E.
And this G's act constitutes a statutory prosecution for the declaration of intent that can be cancelled.
Therefore, the labor relationship between G and E has been terminated effectively by the termination of such agreement or by the statutory prosecution.
In addition, in cases where G claims for the payment of retirement allowances to E and consultation on the amount of retirement allowances is reached, claiming unfair dismissal is contrary to the good faith principle.
Nevertheless, the lower court found the Defendant guilty of this part of the facts charged. In so determining, the lower court erred by misapprehending the legal doctrine and adversely affecting the conclusion of the judgment
2. Determination
A. Article 23(2) of the Labor Standards Act provides that “An employer shall not dismiss an employee during a period of suspension of work for medical treatment of an occupational injury or disease and for 30 days thereafter, or for 30 days thereafter, any woman before and after childbirth during or after childbirth during a period of suspension of work under this Act and for 30 days thereafter.”
According to the evidence duly admitted and examined by the lower court, G used the post-employment leave for three months from May 1, 201 to July 31, 201, while E was dismissed on August 1, 2011. According to the above facts of recognition, the Defendant would end the post-employment leave even though G was not dismissed for thirty days after it used the post-employment leave.