[1] In a case where the right to expect renewal of an employment contract is recognized to be renewed even after the expiration of the term of validity of the employment contract to a worker who signed the employment contract for a specified period, the validity of the employer’s refusal to renew the employment contract against the right to expectation (i.e., invalid), and in such a case, whether the requirements and procedures for renewal of a contract or renewal of a contract under a collective agreement

[2] In a case where an agricultural cooperative employed a contract term of one year as a contract-based employee and a part-time assistant and maintained an employment relationship for six years by concluding a re-contract each year, and the continuous period of employment exceeds five years prescribed by the Labor Management Regulations for Contract Employees, etc., and did not conclude a re-contract on the grounds that work performance average is less than 70 points, the case holding that the refusal to renew the contract to Gap and Eul on the grounds that the legitimate expectation right to conclude the re-contract is recognized and work performance average falls short of the re-contract standard is practically unfair.

[1] In principle, a worker who has entered into an employment contract for a fixed period of time shall be automatically dismissed even if his/her refusal to renew his/her employment contract is terminated. However, even if the term expires in the employment contract, employment rules, collective agreement, etc., the employment contract shall be renewed if the required conditions are met even if the contract is not provided. In full view of the various circumstances surrounding the employment relationship, such as the motive and circumstances for which the employment contract is concluded and the procedure for renewal, the standards for renewal of the contract, the status of the parties to the employment contract, and the contents of the work performed by the worker, the trust that the contract may be renewed if the required conditions are met, and the right to expect unfairly refusing the employment contract in violation of the above provision is acknowledged to be the same as the other party to the employment contract. In such a case, even if the collective agreement becomes void, wages, retirement hours, and other matters concerning individual labor conditions are subject to renewal or renewal of the employment contract, or renewal or renewal of the employment agreement with the employer without the consent of the parties to the employment contract.

[2] In a case where an agricultural cooperative employed a contract worker Gap, Eul, and Eul, whose employment relationship had been maintained for six years by concluding a re-contract each year after setting the contract period as one year with a contract worker and a part-time assistant, had not concluded a re-contract on the grounds that the continuous employment period exceeds five years prescribed within the limits of "Regulations on the Management of Contract Workers and Working Rules for Part-time Assistants" and work performance rating is less than 70 points which constitute the basis for re-contracts, the case holding that, in light of all the circumstances, even if Article 24 of the collective agreement that allows a worker whose contract period expires to renew, regardless of the total work period, the part that limited the continuous employment period to five years in the "Rules on the Management of Contract Employees" cannot be recognized as valid, and that it is not reasonable to recognize the validity of the re-contract as being unfair and reasonable because it falls short of work performance rating for the mere reason that the agricultural cooperative's refusal to renew the contract was made.

[1] Article 23 of the Labor Standards Act, Article 32(3) of the Trade Union and Labor Relations Adjustment Act / [2] Article 23 of the Labor Standards Act, Article 32(3) of the Trade Union and Labor Relations Adjustment

[1] Supreme Court Decision 2007Da51758 Decided December 27, 2007 (Gong2008Sang, 137) Supreme Court Decision 2007Du1729 Decided April 14, 201 (Gong2011Sang, 925)

Jin-gu Agricultural Cooperatives (Attorney Park Jong-young, Counsel for the defendant-appellant)

The Chairman of the National Labor Relations Commission

Defendant Intervenor 1 and two others (Attorney Lee Yong-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2008Nu14526 decided January 8, 2009

The part concerning the Intervenor 2 and 3 among the judgment below is reversed, and that part of the case is remanded to the Seoul High Court. The Defendant 1’s appeal by the Intervenor 1 is dismissed. The costs of appeal by the Intervenor 1 are assessed against the said Intervenor 1.

The grounds of appeal are examined.

1. Judgment on the grounds of appeal by the Defendant joining the Defendant 1

A. On the first ground for appeal

(1) citing the reasoning of the judgment of the court of first instance, the court below acknowledged the fact that the Intervenor joining the Defendant (hereinafter “the Intervenor”) appropriated part of the cancellation money of Nonparty 1’s installment savings to repay another person’s loan interest and repayment without Nonparty 1’s permission, and determined that the Plaintiff suffered losses that could not receive the money unduly appropriated as above, out of the amount borrowed to Nonparty 1.

In light of the records, we affirm and affirm the judgment of the court below, and there is no violation of laws or misunderstanding of legal principles as to the rules of evidence.

(2) According to the reasoning of the judgment of the court below and the judgment of the court of first instance as cited by the court below, the court below acknowledged that the intervenor 1 was in charge of lending to the non-party 2 on October 26, 2000, when the intervenor 1 worked at the plaintiff's regular salary point, and that the statement of the financial transaction information inquiry to the non-party 2 who is currently kept without keeping the required documents at the time of the loan was inquired of the fact that the non-party 2 was not at the time of the loan, but at April 20, 201, and that there was non-performing loans worth KRW 3,391,585 in relation to the above loan, and determined that these circumstances also

However, just because it is found that the intervenor did not prepare the relevant documents at the time of the above loan and the documents related to the loan have been lost due to the intervenor 1's negligence or negligence in relation to the above loan business, it is difficult to conclude that there was negligence or negligence by the intervenor. As a result, it cannot be viewed that the plaintiff suffered losses due to non-performing loans, and therefore, the court below erred in holding the above circumstances as the ground for suspension of business in this case and issuance of standby order.

However, as seen below, the suspension of the instant duties and the standby order can be justified only for the remaining reasons, so such errors by the court below did not adversely affect the conclusion of the judgment.

(3) The lower court determined that, based on its recognized facts, Nonparty 3 was negligent in executing the loan without undergoing such verification or review, even though it had been conducted after ascertaining Nonparty 3’s property and occupation, etc. and closely examining whether it conflicts with the limitation on the amount of loan to the same person under the Plaintiff’s credit business manual, which was stipulated in the Plaintiff’s credit business manual.

In light of the records, the decision of the court below that the loan execution by the intervenor 1 to the non-party 3 constitutes an execution of business in violation of the provision is just, and there is no violation of law such as misunderstanding of legal principles as

B. On the second ground for appeal

With respect to the interpretation of "the time when suspension of duties is necessary to prevent and cope with an expansion of the case due to a serious illegality or an unforeseen accident," which is stipulated as the requirements for suspension of duties, the court below held that, in light of the purport of the suspension order for suspension of duties to prevent additional accident and damage by preventing the occurrence of an accident by preventing the expansion of the case, the requirement of "prevention of expansion of the case" cannot be limited to the expansion of the "the case in question", and that suspension of duties can be ordered to prevent additional accident and damage as well as the expansion of the case in question. Thus, the court below determined that the above participant 1's loan and the occurrence of damage are necessary to prevent additional violation of the provision in advance by excluding the participant 1 from his duties, and that this constitutes the requirements for suspension of duties.

In light of the records, the above judgment of the court below is just, and it is not erroneous in the misapprehension of legal principles as to the interpretation of the requirements for suspension of duty as otherwise alleged in the ground of appeal.

C. On the third ground for appeal

In principle, a personnel order, including a standby order, belongs to the original authority of the employer who is the personnel management authority, and the employer has considerable discretion to such personnel order. Thus, this cannot be deemed unlawful unless there are special circumstances such as violating the Labor Standards Act, etc. or constituting abuse of rights. Whether a standby order belongs to the scope of the legitimate personnel management authority should be determined based on the necessity of business, comparison and comparison with the worker's living disadvantage, consultation with the worker during the process of issuing a standby order, etc. However, whether a standby order goes through the procedure required under the good faith principle, such as consultation with the worker during the process of issuing a standby order, is only one factor to determine whether it is a legitimate personnel management authority, and it does not automatically become invalid due to the abuse of rights (see Supreme Court Decision 2003Da63029, Feb. 18, 2005, etc.).

Examining the facts acknowledged by the court below in light of the above legal principles, the suspension of duties and standby order cannot be deemed an abuse of personnel rights, and the decision of the court below to the same purport is just and there are no errors in the misapprehension of legal principles as to abuse of personnel rights, as otherwise alleged in the ground of appeal.

2. Determination on the grounds of appeal by the Intervenor 2 and 3

A. On the fourth ground for appeal

In principle, the employee’s status as an employee upon the expiration of a fixed period of time is naturally terminated and if the employee fails to renew his/her employment contract, the employee’s status as an employee shall be automatically retired despite the absence of the employee’s expression of his/her refusal to renew the employment contract. However, in light of the various circumstances surrounding the employment contract in question, such as the details of the employment contract and the motive and circumstances leading up to the renewal of the employment contract, the standards for renewal of the employment contract, the establishment of procedures and the actual conditions thereof, and the contents of the work performed by the employee, even if there is no provision, the employer’s refusal of renewal of the employment contract in violation of the aforementioned provision does not have any effect as it is unfair, and the previous employment contract after the expiration of the period is deemed to be renewed upon the fulfillment of a certain period of time, or the employer’s right to expect renewal of the employment contract remains effective upon the formation of a trust relationship between the parties to the employment contract and the employee’s consent to the renewal of the employment contract (see Supreme Court Decision 2007Du1279, Apr. 14, 2019).

According to the facts acknowledged by the court below and the records, since the intervenor 2 had maintained employment relations by entering into an annual renewal contract with the term of contract on October 9, 200 as an employee of the plaintiff's contract, after being employed as an employee of the plaintiff's contract, until October 8, 2006, and the intervenor 3 had concluded an annual renewal contract with the term of contract on November 21, 2000 and maintained employment relations by November 14, 2006 after being employed as an employee of the plaintiff's part-time work, the plaintiff's "Rules on Management of Contract Employees" and "Rules on Management of Part-time Work Assistant (hereinafter both)" (hereinafter referred to as the "Rules") and the above intervenor's work performance agreement with the plaintiff and the above intervenor were concluded for less than five years since they had been employed as an employee of the plaintiff's contract, and the part of the collective agreement with the plaintiff and the intervenor 2, regardless of the terms and conditions of the labor contract, still remains valid by the contract terms and conditions of the contract.

In addition, according to the records, the provision of this case and Article 24 of the collective agreement of this case provide the criteria for determining whether to re-contract work performance points. The provision of this case provides a relatively detailed content as to the time, method, procedure, etc. of work performance performance ratings. Accordingly, the provision of this case provides 70 points, which serves as the criteria for re-contract. Thus, the plaintiff has concluded a re-contract with workers who have worked for more than 5 years before the collective agreement of this case becomes null and void, unless there are special circumstances, and the plaintiff has concluded a re-contract with workers who have worked for more than 5 years before the termination of the contract of this case. The plaintiff has maintained the ratio of organization of a fixed-term worker among all employees, such as contract workers and part-time assistant workers on the ground of the flexible improvement of manpower management and improvement of productivity. Thus, with respect to the above intervenors subject to Article 24 of the collective agreement of this case, the right to work performance points can be recognized as reasonable and legitimate, regardless of the provision of this case and the limit of continuous contract of this case.

Nevertheless, the court below held that Article 24 of the collective agreement of this case set the term of a labor contract and did not fall under the "working conditions" of the Labor Standards Act and thus lost its validity by the invalidation of the collective agreement of this case, and held that the right to expect the renewal of a contract in accordance with the result of high-evaluation under the provisions on the requirements, procedures, etc. for renewal of a contract under the provision of this case or labor contract is limited to contractual workers whose continuous working period is not more than four years, and that there is no reasonable and justifiable right to expect the renewal of a contract with respect to contractual workers whose maximum working period is not less than five years like the above intervenors. Thus, the judgment of the court below is erroneous in the misapprehension of legal principles on a labor contract with the invalidation and period of a collective agreement, which affected the conclusion of judgment

B. On the fifth ground for appeal

According to the reasoning of the lower judgment, the lower court determined that the Plaintiff’s failure to conclude a re-contract with the said Intervenor may not be deemed to infringe on the legitimate right to expect the re-contract, even if the right to expect for the conclusion of the re-contract is acknowledged to the said Intervenor even if the right to expect such expectation is recognized to be more than an average of 70 points in work performance rating, and as long as it is difficult to deem that the said Intervenor obtained an average of less than 70 points in the last work performance rating and that the evaluation was objectively unreasonable.

However, we cannot accept the judgment of the court below for the following reasons.

The reasoning of the judgment of the court of first instance cited by the court below and the records, i.e., ① the above intervenors received work performance ratings from April 4, 2005 to March 4, 2006 (hereinafter “work performance ratings”), which were conducted immediately before the rejection of the instant re-contract, from 70 points below 70 points; ② the above intervenors and the first and second evaluators with higher approach in the instant evaluation process, were awarded at least 70 points; whereas the third and fourth evaluators with low approach did not reach the above point; in particular, the head of the association, who was the fourth evaluators, was remarkably lower than the first and second evaluators, and thus reduced the overall average point. The Plaintiff could not find out any circumstances that could not reach the conclusion of the contract during the process of re-contract performance ratings, including the first and second evaluators’ work performance ratings, for a period exceeding 0 years, and the Plaintiff continued to receive the first and fourth work performance rating from 00 to 70.37.05 points below the above average work performance rating.

If so, this is because the plaintiff formally conducted work performance evaluation to take the ground of rejection of re-contract, which lacks fairness and rationality, and the rejection of re-contract on the ground that the points derived from the examination process that lack fairness and rationality fall short of the standard point of re-contract, constitutes an unfair dismissal in substance, and thus, it cannot be recognized as valid.

Unlike this, the court below erred by misapprehending the legal principles as to unfair dismissal, etc., which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

3. Conclusion

Therefore, the part concerning the Intervenor 2 and 3 among the judgment below is reversed without any need to determine the remaining grounds of appeal, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The Defendant 1’s appeal by the Intervenor 1 is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Sang-hoon (Presiding Justice)