근로기준법위반
The accused shall announce the summary of the judgment of innocence.
1. The Defendant, as the representative of the “C” restaurant in Seongbuk-gu Seoul Metropolitan Government, is an employer who runs restaurant business using eight regular workers.
When an employer intends to dismiss a worker, he/she shall make a prior announcement at least 30 days, and if he/she fails to make a prior announcement at least 30 days, he/she shall pay the ordinary wages for at least 30 days.
Nevertheless, the Defendant, from March 29, 2017, dismissed a worker D who is working on the job from May 30, 2017, as follows: “At around 14:30 on May 30, 2017, the Defendant would be fit to be well-grounded with the patriarch. This shall be the same as that of the patriarch. This shall not be the same. It shall be two weeks.) and did not pay three million won of the pre-paid allowance for dismissal corresponding to the amount of ordinary wages for 30 days.”
2. Determination
(a) Article 35 (Exception to Application of Pre-Announcements) of the relevant Labor Standards Act does not apply to a worker who falls under any of the following:
1. A daily employed worker who has been employed for three months or longer;
2. A person who has been used for a fixed period not exceeding two months;
3. A worker who has been employed for less than six months as a monthly paid worker;
4. Any person who has been used for seasonal work for a fixed period not exceeding six months;
5. The term "worker in a probationary period" as referred to in subparagraph 5 of Article 16 of the Enforcement Decree of the Labor Standards Act means a person who has been employed in a probationary period for not more than three months.
B. This case is based on the premise that the defendant is liable to pay the pre-determination of dismissal allowance to D.
However, according to the evidence, the defendant employed D as a probationary employee for three months (Evidence No. 55 of the evidence record, Article 4 of the labor contract) and the defendant dismissed D on May 30, 2017 during the probationary period. Thus, the defendant constitutes an exception to the application of prior notice in accordance with Article 35 subparag. 5 of the Labor Standards Act and Article 16 of the Enforcement Decree of the same Act.
Therefore, the defendant shall pay D advance notice of dismissal allowance to D.