2. The costs of lawsuit shall be borne by the Plaintiff.

A. The plaintiff is a company that operates passenger transport business with 460 full-time workers from 705-10 Geum-dong, Jeonjin-gu, Jeonjin-gu, Seoul. The plaintiff is a company that is engaged in passenger transport business with 460 full-time workers. The non-party A is a person who was employed by each plaintiff company on October 28, 1987 and the non-party B is a bus driver on October 11, 2005.

B. On July 6, 2010, the Plaintiff: (a) took disciplinary action against A on July 29, 2010 on the ground that he/she was absent from office without permission; (b) refused to dispatch his/her vehicle; and (c) went against A on July 29, 2010 on the ground that he/she committed an act of spreading false facts, defamation of the company; and instigates and conflict mediation of workers; and (d) A and B filed an application for remedy against unfair dismissal with the Defendant on September 2, 2010.

C. On December 27, 2010, the Defendant recognized that each of the instant dismissal against A and B was unfair dismissal, and issued a remedy order ordering the Plaintiff to restore A and B to their original position and to pay the amount equivalent to the wages that could have been received if the Plaintiff had worked during the period of dismissal (hereinafter referred to as “instant remedy order”) within 30 days from the date of receipt of the written adjudication against the Plaintiff. On January 17, 2011, the Defendant notified the Plaintiff of the above remedy order, and requested the Defendant to submit the performance report by March 4, 201.

D. On January 27, 201, the Plaintiff filed an application for reexamination with the National Labor Relations Commission on January 27, 201, while around that time, the Plaintiff reported to the Defendant’s implementation result that “A and B refused to work for an illegal strike from December 8, 2010, and thus cannot carry out an order for remedy for reinstatement to the original position,” and that “B would comply with the order for remedy for reinstatement to the original position as the Plaintiff filed a request for reexamination with the National Labor Relations Commission.” However, on March 22, 2011, the Defendant issued a prior notice of imposition of enforcement fines on the ground that the Plaintiff failed to comply with the instant order for remedy by the due date, and on April 6, 2011, the Plaintiff’s application for reexamination was dismissed.

E. On April 20, 201, the Plaintiff returned A to the Defendant as of April 7, 2011, and B as of April 15, 2011, and the payment of wages was calculated as of December 8, 2010 when A and B commenced illegal industrial actions during the period of dismissal, and submitted a report of the result of the implementation of the relief order that the Plaintiff notified the Defendant of the refund of the remaining amount after deducting the amount of wages from the amount of wages from July 21, 2010 to December 7, 2011 among the retirement allowances received at the time of the dismissal of the instant case, and that the Defendant notified the additional investigation as to the implementation of the instant relief order on April 26, 2011 for the reason that the additional investigation is necessary.

F. On June 23, 2011, the Defendant issued a disposition imposing KRW 13 million compulsory performance on the ground that the Plaintiff performed part of the original part of the instant remedy order and part of the amount equivalent to wages, but the remainder was not fulfilled (hereinafter “instant disposition”).

G. On August 2, 2011, the Plaintiff filed an administrative appeal seeking revocation of the instant disposition with the Central Administrative Appeals Commission, but the said commission dismissed the Plaintiff’s claim on November 1, 201, and the purport of the entire pleadings. [In the absence of dispute as to the grounds for recognition, the Plaintiff’s written evidence Nos. 1, 2, 3 through 5, 7, 8, 9-1 through 3, 9-3, and 9-1 through 3, respectively.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

1) The assertion that all payments equivalent to wages have been performed

The Defendant: (a) deemed that, during the period of dismissal (from July 29, 2010 to July 6, 2011, and July 6, 2011 to April 14, 201) of the Plaintiff and B, the Plaintiff paid only an amount equivalent to the amount of wages to be paid to its employees during the period of dismissal (from July 29, 2010 to July 6, 2011) excluding the period during which they participated in the strike (from December 8, 2012 to April 6, 2011, and from December 8, 2012 to April 14, 201). However, in light of the fact that the instant order of dismissal was not completely implemented, the Plaintiff’s remaining amount of wages to be paid to its employees during the period of dismissal from the Plaintiff’s employees who did not receive the above order of dismissal from the Plaintiff’s labor union, the purpose of this case’s order of dismissal was that the Plaintiff’s employees did not receive the above order of dismissal.

2) The assertion of deviation and abuse of discretionary power

At the time of the dismissal of each of the instant cases, A received approximately KRW 25 million as retirement allowances, and approximately KRW 15 million as B was restored to their original position, but did not return the remainder which was demanded by the Plaintiff to offset the amount corresponding to the wages for the remainder of the period excluding the strike period during the period of dismissal. In fact, it would have the same effect as the amount of wages for the entire period of dismissal, including the strike period, was already received. Nevertheless, the Defendant’s imposition of enforcement fines to the Plaintiff is against the principle of proportionality or the principle of equality, and is in violation of the principle of equality, thereby deviating from and abusing discretionary power.

B. Relevant statutes

The entries in the attached Table-related statutes are as follows.

C. Determination

1) Whether the Plaintiff complied with the payment order equivalent to wages

Article 33(1) of the Labor Standards Act provides that the Labor Relations Commission shall impose a non-performance penalty on an employer who fails to comply with an order for remedy by the deadline for implementation after receiving the order for remedy, and Article 79 Subparag. 2 of the Labor Relations Commission’s Rule (amended by Rules No. 21 of the National Labor Relations Commission, Jul. 10, 2012; hereinafter the same) of the Labor Relations Commission’s Rule provides that the issue of whether the obligation to pay an amount equivalent to the wages has been fulfilled

In the instant case, as seen earlier, the Defendant recognized that each of the instant dismissal in the instant case for remedy against A and B is unfair, and ordered the Plaintiff to restore A and B to their original position within 30 days from the date of receiving the written adjudication, and to pay the amount equivalent to the wages that could have been paid if the Plaintiff had provided labor during the period of dismissal. ① In the event that the dismissal of an employer is null and void, the employer’s labor contract relations continue to exist so long as the employee was unable to provide labor due to the cause attributable to the employer, so that the employee may claim for full payment of wages that would have been paid if the employee continued to provide labor (see Supreme Court Decision 92Da39860, Dec. 8, 192). ② Even if, in light of the Plaintiff’s circumstances where employment was practically impossible even without dismissal, the Plaintiff could not claim wages during that period for which the Plaintiff could not be unfairly dismissed due to the reasons attributable to the employer’s failure to provide labor (see Supreme Court Decision 200Da4884, Oct. 25, 1994).

From July 6, 2010 to the preceding day (A in the case of A, April 6, 2011, and April 14, 2011, in the case of B), the entire amount of wages that the above worker would have received if he had continued to work, and whether the plaintiff performed the duty to pay the amount equivalent to the wages during the period of dismissal under the relief order in this case should be determined according to whether the amount was paid in full in accordance with Article 79 (2) of the Labor Relations Commission Regulations.

However, as seen earlier, with regard to the duty to pay the amount equivalent to the wages during the period of dismissal among the instant remedy order, the Plaintiff paid only the amount that falls short of the total period of dismissal (from July 29, 2010 to April 6, 201, and from July 6, 201 to April 14, 201). As such, it is reasonable to view that the Plaintiff did not completely perform the duty to pay the amount equivalent to the wages during the period of dismissal before the date of the instant disposition. Accordingly, the Plaintiff’s assertion on a different premise is without merit.

2) Whether the instant disposition was a deviation or abuse of discretionary power

The following circumstances revealed in addition to the purport of the entire arguments, namely, ① the Labor Relations Commission intends to restore the rights of the affected workers to the original state due to the employer’s disposition, such as dismissal of workers, by recognizing illegality of the unfavorable disposition against the employer. Such restitution should not be formally restore to the original state. As such, it is implemented in the form of an order for compensation equivalent to the amount of wages during the period of dismissal as well as an order for compensation for the economic disadvantage of the affected workers. ② The enforcement fine system was introduced pursuant to the criticism that the employer fails to comply with the order for remedy in the absence of appropriate means for ensuring prompt implementation of the order for remedy if the employer fails to comply with the order for remedy. ③ Article 32 of the Labor Standards Act provides that an order for remedy, dismissal or retrial is not effective by an administrative litigation against the National Labor Relations Commission under Article 31, and that the order for remedy is not implemented within the period of time that the Plaintiff fails to comply with the order for remedy. In light of the above circumstances, it is difficult to say that the order for remedy has been completely dismissed.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Cho Soo-hee

Judges Kim Gin-young