March 9, 2018

2. Of the appeal costs, the part resulting from the intervention in the appeal is assessed against the Intervenor joining the Defendant, and the remainder is assessed against the Defendant.

1. Purport of claim

The decision made by the National Labor Relations Commission on September 26, 2016 was revoked on September 26, 2016 by the Central Labor Relations Commission as to the case of request for unfair dismissal between the Plaintiff and the Defendant joining the Defendant.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

A new argument among the allegations made by the plaintiff in this court while filing an appeal is further determined as follows, and as to the assertion that emphasizes again the contents of the plaintiff's assertion in the first instance court and this court based on the evidence submitted by the first instance court and this court, even if re-examination is conducted closely, it is judged that there exists a reasonable ground for the plaintiff to not conclude this contract at the expiration of the period of trial with the intervenor who is an employee during the period of trial, and thus, the judgment of the first instance that

Therefore, the reasoning of the judgment of the court on the instant case is as stated in the reasoning of the judgment of the court of first instance, except for the following additional parts, and thus, this is cited in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

【Supplementary Decision】

The defendant and the intervenor asserted that the dismissal of this case against the intervenor in need of suspension of business for medical treatment violates the provision of restriction on dismissal under Article 23 (2) 1 of the Labor Standards Act, and thus, is unlawful.

According to Article 23(2) of the Labor Standards Act, an employer is unable to dismiss an employee during a period of suspension of work for medical treatment of occupational injury or disease and 30 days thereafter. This is to protect an employee absolutely from threat of actual employment during the period of loss of the employee’s work and 30 days thereafter, which would be considerably appropriate to recover the work force due to occupational accidents. Therefore, even if an employee is under work due to occupational injury and treatment, if it is deemed that it is unnecessary to suspend work for medical treatment even if the employee is under work without suspending work or is under work due to occupational injury, it does not constitute a period of suspension of work limited. Here, the term “ordinary work” refers to a case where the employee is still under work and provides work with normal work force. Thus, the case where the employee is under work for medical treatment, even though it is objectively necessary to suspend work for medical treatment, it does not fall under the case where the employee is under work for which the employee is under work for which the employee is under work for which the employee is under work, and whether the employee is under work for more than 20 days before and after dismissal.

The following facts may be acknowledged in full view of Gap evidence Nos. 1, 16, Eul evidence Nos. 17 through 20, 32 through 44, and the testimony of the non-party witness of the first instance court and the purport of the whole pleadings.

① On December 10, 2015, the Intervenor had been trying to move to the Plaintiff’s place of business, and the Mariri Nos. s. s. s. s. s. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. d. k

② On December 14, 2015 through December 29, 2015, the Intervenor was diagnosed to the effect that there was a possibility of drinking, even though he/she reinciated at the △ Hospital in Seoul Special Metropolitan City again on December 30, 2015, because symptoms, such as the decline in moving the company's goods, such as the disposal and maintenance of the company's goods from December 14, 2015 to the 29th of the same month, but at the same time, he/she was diagnosed to the effect that there was a possibility of drinking, if not performing surgery. However, in order to treat the company as an inciated surgery, the Intervenor was provided with the first three-five-five-five-month-month-month-month-month-month-month-month-old treatment, second-time treatment-related treatment-related treatment-related treatment-related treatment-related treatment-related treatment-related treatment-related treatment-related treatment-related treatment-related treatment-related treatment-related treatment-related treatment-related treatment-related treatment-related treatment-related treatment-related treatment-related treatment-related treatment-related treatment-related treatment-related treatment-related treatment-related treatment-related treatment-related treatment-related treatment-related treatment-related treatment;

③ Upon the Intervenor’s appeal for the certificate of blance, the Plaintiff posted the Intervenor to a prefabricated room, not a laboratory that did not need heavy things. On January 12, 2016, Nonparty 2, the vice president of the Plaintiff, requested the Plaintiff to submit a medical certificate on January 11, 2016. On January 12, 2016, the Intervenor submitted a medical certificate to the Intervenor. On January 12, 2016, the Intervenor submitted an industrial accident compensation insurance report (No. 21 evidence, B, and 36 evidence) on the issuance of the Seoul Special Metropolitan City dedicated Hospital Hospital, and on the ground that there was no need to observe the progress, and the symptoms need to continue, the Plaintiff failed to submit a medical certificate of 20 weeks from January 12, 2016 to March 8, 2016, and it was possible for Nonparty 2 to submit a medical certificate of 16 medical treatment again due to the need to be submitted to the Intervenor.

④ On January 14, 2016, the Intervenor did not work for the treatment of bad faith, and the Plaintiff notified the Intervenor of the dismissal of this case on the same day.

⑤ 참가인은 2016. 1. 19. 근로복지공단 서울관악지사에 허리부상을 이유로 산재 요양ㆍ보험급여를 신청하였다. 근로복지공단 서울관악지사는 2016. 2. 26. 참가인에 대한 2016. 1. 22.자 ◁◁병원장의 산업재해보상보험 소견서(을나 제33호증)에 따라 2016. 1. 18. 통원 1일, 2016. 1. 19.부터 2016. 2. 29.까지 입원 42일(보존적 치료, 통증 조절, 증상 호전 없으면 수술적 치료 요함), 2016. 3. 1.부터 2016. 4. 11.까지 통원 42일(보존적 치료, 통증 조절, 경과관찰 요함)의 치료를 내용으로 하는 요양ㆍ보험급여 결정을 하였다.

앞서 본 법리를 기초로 이러한 사실관계를 살펴보면, 시용기간 중에 있는 근로자인 참가인에 대하여도 요양을 위한 휴업기간 중의 해고 금지를 규정한 근로기준법 제23조 제2항 이 적용된다고 하더라도, 위 인정사실에서 알 수 있는 바와 같이 참가인은 2015. 12. 10. 허리통증이 발생한 후 그 다음날 보존적 치료로 통증이 호전되었고, 2015. 12. 14.부터 같은 달 29일까지는 정상적으로 근무하다가 다시 통증이 심해져 2016. 1. 7.까지 3회에 걸쳐 한의원에서 보존적 치료만을 받았던 점, 원고는 참가인을 허리에 무리가 가지 않도록 무거운 물건을 들지 않아도 되는 조립실로 전환 배치하였던 점, 참가인이 이 사건 해고 이틀 전에 산재 요양ㆍ보험급여를 신청해 달라면서 원고에게 제출한 2016. 1. 12.자 서울특별시◎◎◎병원장 발행의 산업재해보상보험 초진소견서에는 통증이 있으나 활동이 어느 정도는 가능하고 2016. 1. 12.부터 8주간의 통원치료를 예상하면서 부분취업 치료가 가능하다고 기재되어 있는 점, 이 사건 해고 뒤인 2016. 1. 22.자 ◁◁병원장의 산업재해보상보험 소견서에서 2016. 1. 19.부터 6주간의 입원치료가 필요하다고 기재되어 있는 점 등의 여러 사정을 고려하면, 참가인은 적어도 이 사건 해고 당시인 2016. 1. 14.까지는 업무상 부상으로 일부 치료가 필요하다고 하더라도 휴업하지 아니하고 정상적으로 출근하고 있었던 경우 또는 요양을 위하여 휴업할 필요가 있다고 인정되지 아니하는 경우에 해당한다고 보이므로, 이 사건 해고 당시는 근로기준법 제23조 제2항 에서 정한 해고가 제한되는 휴업기간에 해당하지 아니한다고 보는 것이 타당하다.

Therefore, the dismissal of this case cannot be deemed to have existed during the period of suspension under Article 23(2) of the Labor Standards Act. Thus, the plaintiff's above assertion is without merit.

2. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning. Since the judgment of the court of first instance is justified, the defendant's appeal is dismissed on the grounds of its merit, and it is so decided as per Disposition.

Judges Han Chang-hun (Presiding Judge)

1) Article 23 (Restriction on Dismissal, etc.) (1) of the Labor Standards Act (1) An employer shall not, without justifiable cause, dismiss, lay off, suspend, transfer a worker, reduce wages, or take other disciplinary measures (hereinafter referred to as “unfair dismissal, etc.”) against a worker.