Whether a worker who did not provide his/her labor in the former place of employment, disputing the validity of an invalid change of occupation may claim the payment of wages that he/she would receive when he/she continued to work in the previous place of employment during the period from the time of the order to reinstate (affirmative)

If an employee fails to provide his/her labor in the former place of employment while disputing the validity of the latter order due to an unfair change of occupation, this constitutes a cause attributable to the employer who issued the unfair order of change of occupation, and thus, the employee may claim the payment of wages payable when he/she continues to work in the former place of employment during the period from the time of the order

Article 538(1) of the Civil Act; Article 30(1) of the Labor Standards Act

Plaintiff (Appointed Party)

Gyeonggi-do Individual Freight Trucking Association (Attorney Kim Jong-jin, Counsel for defendant-appellant)

Seoul High Court Decision 2005Na75578 delivered on April 18, 2006

The appeal is dismissed. The costs of appeal are assessed against the defendant.

In principle, the transfer or the transfer of a position to a worker belongs to the authority of the employer who is the personnel management authority, and thus, the employer has a considerable discretion within the scope necessary for his duties, but if there are special circumstances, such as violation of the Labor Standards Act, etc. or abuse of rights, it shall be deemed null and void (see Supreme Court Decisions 93Da51263, May 9, 1995; 2003Du13250, Feb. 12, 2004; 2004; 2003Du13250, Feb. 12, 2004; 2000Du13250, if the worker fails to provide his/her labor at the place of the previous order while disputing the validity of the order, this is attributable to the cause attributable to the employer who has issued the order of unfair change of occupation.

In light of the above legal principles and records, Plaintiff (Appointed) and 1, 2, and 3 (hereinafter “Plaintiffs”) were dismissed from the Defendant, and then requested relief from the Labor Relations Commission by asserting that the above dismissal was unfair, but the above dismissal was decided to be unfair. However, the defendant's objection against the above order of remedy was finally decided to be unfair by the Supreme Court. The defendant reinstated the plaintiffs according to the above Supreme Court decision and issued a transfer order to a place other than the previous one. The plaintiffs asserted that the above transfer order is invalid as unfair transfer, and the plaintiff again received a request for remedy from the Labor Relations Commission without working at the former place, and eventually returned to the original place of work before the dismissal. Thus, in light of the above circumstances, the above transfer order of this case against the plaintiffs is invalid as it constitutes abuse of personnel rights, and the plaintiffs' failure to provide labor due to the refusal to provide labor due to the reason attributable to the defendant's failure to return to the original place of work. Thus, the plaintiffs are entitled to claim payment due to the reasons attributable to the plaintiff's failure to return to work.

Although there are some inappropriate points in the court below's reasoning, it is correct to determine that the plaintiff (appointed party)'s claim of this case is justified as a result, and there is no error in the misapprehension of legal principles as to the principle of no labor-free wages and the scope of the business owner's right to order work, as otherwise alleged in

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Ji-hyung (Presiding Justice)