2020 Gohap58741 (Counterclaim)

Attorney Kim Jong-han, Counsel for the defendant-appellant

Law Firm Doz., Counsel for the plaintiff-appellant

Attorney Choi Jong-sung

2. The Defendant (Counterclaim Plaintiff) pays to the Plaintiff (Counterclaim Defendant) 12,875,700 won with interest of 6% per annum from January 1, 2020 to November 20, 2020, and 12% per annum from the next day to the day of full payment.

3. The plaintiff (Counterclaim defendant)'s remaining main claim and the defendant (Counterclaim plaintiff)'s counterclaim are dismissed, respectively.

4. The costs of lawsuit are assessed against the Plaintiff (Counterclaim Defendant) and the remainder, respectively, by the Plaintiff (Counterclaim Plaintiff).

5. Paragraph 2 can be provisionally executed.

Counterclaim: The plaintiff shall pay to the defendant 6,215,567 won and the amount calculated by applying 5% per annum to the service date of a copy of the counterclaim of this case from March 20, 2020 to March 20, and 12% per annum from the next day to the day of complete payment.

A. The Defendant is a company operating and managing sports facilities, and the Plaintiff is an employee employed by the Defendant as a health radar and was dismissed.

B. On May 5, 2019, the head of the Defendant’s headquarters sent the Plaintiff a Kakao Stockholm message stating that the Plaintiff’s employment relationship is terminated as of May 11, 2019 (hereinafter “instant dismissal disposition”).

C. On May 7, 2019, the Plaintiff filed an application for remedy against unfair dismissal with the Seoul Regional Labor Relations Commission on the ground that the instant dismissal disposition is unreasonable. On July 4, 2019, the Seoul Regional Labor Relations Commission unilaterally terminated the employment relationship of the Plaintiff against the Plaintiff’s will, which constitutes dismissal, and the Defendant notified the Plaintiff of the dismissal to the Kakao Stockholm message while dismissing the Plaintiff and violated the duty to notify in writing under Article 27(1) of the Labor Standards Act.

[Judgment of the court below] Facts without dispute, Gap's evidence of subparagraphs 1 through 3, and the purport of the whole pleadings

2. Judgment on the plaintiff's main claim

A. Judgment on confirmation of invalidity of dismissal

We examine ex officio the validity of the claim for nullification of dismissal among the lawsuits in this case.

In general, in a case where a worker seeks confirmation of invalidity of a dismissal disposition and seeks wages during the period in which he/she could have provided labor, the purpose of a lawsuit for confirmation of invalidity of dismissal is to restore the status under a labor contract between the worker and the company. Therefore, in a case where the worker restores his/her status as an employee due to an employer’s reinstatement order, etc. after receiving disadvantage such as dismissal, the claim for confirmation of invalidity of such dismissal is not merely a claim for confirmation of the past legal relationship, and thus, there is no benefit of confirmation (see, e.g., Supreme Court Decision 90Meu273

In addition to the overall purport of the statements and arguments set forth in subparagraphs 3 and 4 above, the defendant's chief commissioner C sent the plaintiff a Kakaox message on November 7, 2019, stating that he/she will be reinstated as of November 11, 2019, and the defendant, who was not reinstated after November 11, 2019, urged the plaintiff to send a written order of reinstatement to the plaintiff on November 28, 2019. According to the above facts, as long as the defendant recognized the existence of an employment relationship with the plaintiff and returned the plaintiff as of November 11, 2019, the part of the claim for nullification of dismissal in the lawsuit of this case is unlawful as there is no benefit of lawsuit (the plaintiff, the above order of reinstatement is merely a means to avoid liability for imposition or criminal punishment of the non-payment due to unfair dismissal, and the defendant's continued to pay the non-payment wages, etc., and thus, the plaintiff's assertion that the above order of reinstatement is invalid since no other evidence exists.

B. Determination as to the unpaid wage claim

1) The plaintiff's assertion

Since the instant disposition of dismissal is null and void, the Defendant is obligated to pay the Plaintiff wages of KRW 16,475,358 as wages from May 11, 2019 to December 31, 2019, as well as damages for delay thereof, and wages calculated at the rate of KRW 2,207,630 per month from January 1, 2020 to the time the Plaintiff is reinstated.

2) Whether the dismissal of this case is null and void

In order to determine the existence of the Defendant’s obligation to pay wages to the Plaintiff, the validity of the instant dismissal disposition is considered. Article 27(1) of the Labor Standards Act provides that “Where an employer intends to dismiss a worker, the employer shall be notified in writing of the grounds for and timing of the dismissal.” However, there is no evidence to acknowledge that the Defendant, at the time of the instant dismissal, notified the Plaintiff in writing of the grounds for and timing of the dismissal. Therefore, the instant dismissal disposition is null and void in violation of the duty to notify in writing as stipulated

3) Occurrence and scope of duty to pay wages

A) First, we examine the duty to pay wages before the date of the order of reinstatement. From May 11, 2019 to November 10, 2019, which was the date on which the Plaintiff was dismissed according to the instant disposition of dismissal, the Plaintiff’s failure to work from May 11, 2019 to November 10, 2019, which was the day before the restoration of the Plaintiff’s labor relationship was due to grounds attributable to the Defendant.

The Minimum Wage Act stipulates that an employer shall pay the wages above the minimum wage amount to the workers subject to the application of the minimum wage (Article 6(1).), and that a portion of the labor contract between the workers subject to the application of the minimum wage and the employer which determines as wages the amount which falls short of the minimum wage amount shall be null and void, and in such cases, the invalidated portion shall be deemed to have been paid the same wages as the minimum wage amount as prescribed by this Act (Article

In addition to the facts without dispute, Gap evidence Nos. 4 and 5, the plaintiff provided labor for 8 hours a day from each week to each day, 7 hours and 30 minutes a day, and Saturdays, 2,145,950 won a monthly minimum wage in 2019 [ = Si wage 8,350 won x 257 hours (=(40 + 8 + 11.25), + 365/12/7, and minority number)]. The plaintiff received wages below the above minimum wage from the defendant at the time of the dismissal of the case. According to the above facts established, the defendant has the obligation to pay damages for delay to the plaintiff from May 11, 2019 to October 1, 2019 x 2,1450 won x 2,2057,5705 x 57,5719).

B) Next, we examine the duty to pay wages after the date of the order of reinstatement. The defendant ordered the plaintiff to reinstate as of November 11, 2019, and the above order of reinstatement is valid as seen earlier. However, there is no evidence to prove that the plaintiff provided labor to the defendant after the above order of reinstatement, and the failure of the plaintiff to provide labor after the above order of reinstatement is effective, the above order of reinstatement is due to reasons attributable to the plaintiff. Therefore, it cannot be deemed that the defendant was liable to pay wages to the plaintiff after the date of the order of reinstatement. Thus, this part of the plaintiff's assertion is rejected without further review.

4) Sub-committee

Therefore, the defendant is obligated to pay to the plaintiff the above 12,875,700 won as wages payable to the plaintiff and damages for delay calculated at the rate of 12% per annum under the Commercial Act from January 1, 2020 to November 20, 2020, which is the date of the decision of this case where there is a reason to dispute the existence or scope of the defendant's obligation to pay to the plaintiff, and the damages for delay calculated at the rate of 12% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment.

3. Judgment on the defendant's counterclaim

A. The defendant's assertion

Since the Plaintiff embezzled total of KRW 10,630,00,00, which should be attributed to the Defendant while working as a health strawer belonging to the Defendant, the Plaintiff is obligated to pay the Defendant for damages incurred by the tort, including the above KRW 10,630,00,00 and damages for delay from October 4, 2018. Meanwhile, as of March 19, 2020, the sum of principal and damages for delay of the above damages was 11,405,467. As of March 19, 2020, the Plaintiff paid KRW 5,189,90 as part of the same day, and as a result, the repayment was appropriated in order of principal, and the principal amount remains. Accordingly, the Plaintiff is obligated to pay damages remaining to the Defendant and damages for delay.

B. Determination on the cause of the claim

In addition to the purport of the argument in Gap evidence No. 9, the court below acknowledged the fact that during the period from August 30, 2017 to August 17, 2018, the plaintiff, who belongs to the defendant, embezzled the aggregate of KRW 9,950,00 for the costs of personal activity to be reverted to the defendant. On the other hand, on March 19, 2020, the defendant was paid KRW 5,189,90 as part of the damages incurred from the above embezzlement from the plaintiff on March 19, 2020, the defendant was paid KRW 5,189,90.90 for the damages incurred from the tort, the principal amount of KRW 9,950,00 for the damages incurred from the tort, KRW 725,860 for delay compensation from October 4, 2018 (the plaintiff's claim) to August 19, 2018 to KRW 9,90 for the remainder of KRW 90,5085,616

C. Determination on the defense

The plaintiff asserts that he fully paid the remainder damages of 5,485,960 won and the damages for delay thereof. The plaintiff has no dispute between the parties that the plaintiff paid the remainder damages of 2020,7.20, 5485,960 won after the plaintiff was served with a duplicate of the counterclaim of this case, and 5% per annum from March 20, 2020 to July 17, 2020, the delivery date of a duplicate of the counterclaim of this case, and 95,591 won per annum from the next day to July 20, 2020, and 12% per annum under the Civil Act. Accordingly, the plaintiff's remaining damages and the damages for delay against the plaintiff of this case were fully extinguished by the plaintiff's repayment.

D. Sub-committee

Therefore, we cannot accept this part of the defendant's argument.

4. Conclusion

Therefore, the part of the plaintiff's claim for nullification of dismissal among the principal lawsuit is unlawful and dismissed. The remaining principal lawsuit is accepted within the scope of the above recognition, and the remainder is dismissed as it is without merit. The defendant's counterclaim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Dooon

Judge Song Ho-hun