[부당해고구제재심판정취소][집39(3)특,659;공1991.10.15.(906),2453]
(a) Where his dismissal under Article 27 (2) of the Labor Standards Act is limited, and he does not fall under the meaning of the temporary shutdown and the temporary shutdown; and
(b) The case holding that it cannot be readily concluded that the truck driver's license does not need to suspend his/her business for the purpose of medical treatment of injury merely because the truck driver led the company and the strike farming during the period of outpatient treatment;
A. The purport of restricting the dismissal of an employee under Article 27(2) of the Labor Standards Act is to protect an employee absolutely against the loss of his/her labor force and the recovery of his/her labor force due to an occupational accident for 30 days thereafter, and thus, it does not constitute the suspension period of dismissal under the above Act, in cases where the employee is under normal work without suspending his/her work, even if he/she is under medical treatment due to occupational injury, etc., or where it is not deemed necessary to suspend his/her work for medical treatment even in cases where he/she suspends his/her work due
B. The case holding that if the truck driver's number of truck drivers suffered from occupational injury and received a diagnosis that they can lead a daily life and workplace life and worked normally from that day, barring special circumstances, the period of suspension for medical treatment should be deemed to be the period until the day before the day when they came to work normally after the treatment ends, and the fact that the truck driver led the company and the strike farming during the treatment period alone cannot be concluded to be a case where it is not necessary to suspend the business for the medical treatment of injury in light of the nature of the work.
Article 27(2) of the Labor Standards Act
Attorney Hak-chul et al., Counsel for the defendant-appellant
The Chairperson of the National Labor Relations Commission
Seoul High Court Decision 90Gu15398 delivered on March 29, 1991
The judgment below is reversed and the case is remanded to Seoul High Court.
We examine the grounds of appeal.
1. On November 18, 1989, the judgment of the court below acknowledged that the non-party, who is the truck driver of the plaintiff company, suffered from injury to the whole 3-day light salt and the tension due to the occurrence of an accident during his work on November 18, 1989, and received sick leave from the plaintiff company to December 10, 1989, and suffered property loss of 47 million won for the plaintiff company as stated in its reasoning while the non-party, who was the truck driver of the plaintiff company, received from the plaintiff company Byung for 10 days from November 27 to December 6, 1989, and did not suspend his work for 10 days from the date of his work until December 31, 1989, and determined that the non-party's order to suspend work or suspend his work for the above non-party's medical treatment after the expiration of his work period without being completely cured, or that the non-party's order to suspend work for 10 days from the above date of work.
2. According to Article 27(2) of the Labor Standards Act, an employer shall limit dismissal by stipulating that an employee shall not be dismissed for the period of suspension of medical treatment for an occupational injury or disease and for thirty days thereafter. This is the period during which an employee loses his/her labor force due to an occupational accident and for thirty days thereafter, are absolutely intended to protect his/her employee from a threat of his/her position. Thus, the lower court’s judgment on this point is justifiable in that it does not constitute the period of suspension of dismissal under the above Act in cases where an employee is under normal work without suspending his/her work even if he/she is under medical treatment due to an occupational injury, etc., or where it is not deemed necessary to suspend his/her business for medical treatment even if he/she is under suspension of his/her work
However, the issue of whether or not a suspension of business is required for medical treatment must be determined by taking into account various objective circumstances. According to the records of evidence Nos. 21, 25, and evidence Nos. 2-2, which are held by the court below, the non-party, who suffered occupational injury as stated in the above judgment, was diagnosed by the non-party as being subject to the above medical treatment from November 21 to December 10 of the same year that daily life and workplace life are possible as of December 11 of the same year, and actually, it can be recognized that the non-party had worked normally only after December 11 of the same year. Thus, the suspension of medical treatment for the non-party, barring any special circumstance, should be deemed to be until December 10 of the same year, where the non-party led the plaintiff company to work normally after the completion of medical treatment. However, even if the non-party led the plaintiff company during the treatment period, it is not necessary to readily conclude that the non-party's occupational injury is the non-party's injury.
Nevertheless, the court below determined that the dismissal disposition of this case was legitimate only on the ground that the non-party led the strike farming without further deliberation as to whether the suspension of business was necessary for the above injury from the time when the above non-party led the strike farming. Ultimately, the court below erred by misapprehending the legal principles on restrictions on dismissal under Article 27 (2) of the Labor Standards Act and failing to exhaust all necessary deliberations, thereby affecting the conclusion of the judgment.
The argument pointing this out is with merit.
Therefore, the judgment below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Yong-sung (Presiding Justice)