임금
The part against the plaintiff falling under the amount ordered to be paid under the judgment of the first instance shall be revoked.
The defendant.
1. Basic facts
A. From February 13, 2017, the Plaintiff entered into an employment contract with the Defendant who runs the automobile maintenance business in the trade name called C (hereinafter “instant employment contract”) and was dismissed on February 17, 2017 while on duty with the monthly salary of KRW 2.5 million (hereinafter “instant employment contract”).
B. On March 27, 2017, the Defendant paid KRW 417,00 to the Plaintiff the wage accrued during the continuous period of the instant employment contract, but did not pay KRW 2.5 million for the advance notice of dismissal.
[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, Eul evidence Nos. 1 and 2, the purport of the whole pleadings
2. Determination as to the cause of action
A. The defendant, who is liable to pay an advance notice of dismissal allowance, dismissed the plaintiff without giving a notice of dismissal 30 days before the dismissal, is obligated to pay 2.5 million won and damages for delay to the plaintiff as an ordinary wage for 30 days as an advance notice of dismissal under Article 26 of the Labor Standards Act.
B. The Defendant asserts that the Plaintiff’s period of employment is less than three months, and thus, it may not be required to give a notice of dismissal to the Plaintiff pursuant to Article 26 subparag. 1 of the former Labor Standards Act. The former Labor Standards Act (amended by Act No. 16270, Jan. 15, 2019; hereinafter referred to as the “former Labor Standards Act”) which stipulates that a monthly wage worker for whom six months have not elapsed as a part of the employee was excluded from the application of the pre-announcement of dismissal system.
Article 35 Subparag. 3 of the Labor Standards Act (see Constitutional Court Order 2014Hun-Ba3, Dec. 23, 2015) has become null and void due to the Constitutional Court’s decision of unconstitutionality (see Constitutional Court Order 2014Hun-Ba3, Dec. 23, 2015). Article 26 Subparag. 1 of the Labor Standards Act was newly established and promulgated and enforced by Act No. 16270, Jan. 15, 2019. According to Article 2 of the Addenda of the Labor Standards Act (Article 16270, Article 26 Subparag. 1 of the amended Labor Standards Act on the exception to the application
The labor contract of this case is the former Labor Standards Act.