2014Guhap312 Revocation of Disposition of Imposing a non-performance penalty

A Stock Company

Gyeonggi Regional Labor Relations Commission

August 22, 2014

September 26, 2014

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposition of KRW 8,00,000 for non-performance penalty imposed on the Plaintiff on October 14, 2013 is revoked (i.e., the date of disposition written in the complaint by the Plaintiff appears to be a clear clerical error on October 2, 2013, as the date of disposition stated in the complaint’s claim is deemed to be October 14, 2013).

1. Details of the disposition;

A. The plaintiff was established on April 1, 1996 and is engaged in metal gold business, etc. by employing 30 full-time workers in Ansan-si member B.

B. On September 17, 2012, the Plaintiff’s employee C filed an application for unfair dismissal with the Defendant claiming that he was subject to unfair dismissal from the Plaintiff. On December 21, 2012, the Defendant recognized that dismissal against C was unfair and that the dismissal against C was made by the Plaintiff, and issued a judgment that “the Plaintiff would pay 6,401,013 won in lieu of the reinstatement to C” (hereinafter referred to as “the instant remedy order”) within 30 days from the date of receipt of the written judgment, and the said written judgment was served on the Plaintiff on January 2, 2013. The Plaintiff filed an application for reexamination with the National Labor Relations Commission on January 9, 2013, but the National Labor Relations Commission dismissed the said application for reexamination on March 28, 2013.

D. Meanwhile, on the other hand, the Plaintiff failed to comply with the instant remedy order by the date of implementation ( February 2, 2013), and the Defendant notified the Plaintiff of the charge for compelling the performance (the first vehicle) under Article 33 of the Labor Standards Act on March 4, 2013.

E. On September 6, 2013, the Plaintiff failed to comply with the instant remedy order even after the said retrial ruling and the imposition of enforcement fines, and the Defendant notified the Plaintiff that the enforcement fines would be charged again due to the nonperformance of the instant remedy order. On October 14, 2013, the Plaintiff notified the Plaintiff that the enforcement fines would be charged again. (hereinafter “instant disposition”).

F. Meanwhile, on October 31, 2013, the Plaintiff deposited KRW 7,694,343 of the monetary compensation amount in the future in accordance with the judgment of the lawsuit claiming monetary compensation for unfair dismissal (U.S. District Court Decision 2013Gau34130) filed by C.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 9, Eul evidence Nos. 1 and 2, the purport of the whole pleadings

【Ground statute】

Article 33 (Compulsory Performance Money)

(1) A Labor Relations Commission shall impose a charge for compelling the performance not exceeding 20 million won on an employer who has received the order for remedy (including the decision for reexamination the contents of which are the order for remedy; hereafter the same shall apply in this Article) but fails

(2) A Labor Relations Commission shall inform an employer in writing that the charge for compelling the performance is imposed and collected within 30 days prior to the imposition of the charge for compelling the performance pursuant to paragraph (1). When it imposes the charge for compelling the performance pursuant to paragraph (1), it shall do so in writing, specifying the amount of the charge for compelling the performance, reasons for the imposition

(4) The amount of a non-performance penalty imposed pursuant to paragraph (1) depending on the type and degree of violation, procedures for returning the non-performance penalty imposed and collected, and other necessary matters shall be prescribed by Presidential Decree

(5) A Labor Relations Commission may repeatedly impose and collect a charge for compelling the performance under paragraph (1) two times a year from the date it issues the first order for remedy until the order for remedy is complied with. In such cases, the charge for compelling the performance shall not be imposed and collected in excess of two years.

(6) The Labor Relations Commission shall not impose any new charge for compelling compliance if the order for remedy is complied with, but shall collect the charge for compelling compliance already imposed before the order for remedy is complied with.

The types of offenses and standards for imposing non-performance penalties according to the degree of offense under Article 33 (4) of the Enforcement Decree of the Labor Standards Act shall be as specified in attached Table 3.

[Attachment 3] Criteria for Imposition of Non-performance Penalties (Related to Article 13)

A person shall be appointed.

* Non-performance: Specific amount of non-performance penalty shall be determined within the scope of the amount imposed according to the type of the offense, taking into consideration the motive of the offense, the degree of the employer's liability, such as intentional and negligent acts, the degree of effort to implement the order for remedy,

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

C In filing a claim for excessive compensation more than the amount stipulated in the instant remedy order, the Plaintiff filed a civil suit against the Plaintiff and seized real estate owned by the Plaintiff, and the Plaintiff was expected to pay compensation according to the outcome of the lawsuit, and thus there was justifiable grounds for failing to comply with the remedy order. However, without considering such circumstances, the Defendant’s act of rendering the instant disposition to the Plaintiff on the sole basis of the imposition standard for formal enforcement fines was unlawful as it deviates from and abused

(b) judgment;

1) Article 33(1) of the Labor Standards Act provides that "the Labor Relations Commission shall impose a non-performance penalty of 20 million won or less on an employer who fails to comply with an order for remedy by the deadline for performance after receiving the order for remedy," and Paragraph (4) of the same Article provides that "The amount of non-performance penalty imposed under paragraph (1) depending on the type and degree of violation, procedures for refund of non-performance penalty imposed and collected under paragraph (1), and other necessary matters shall be prescribed by Presidential Decree," and Paragraph (5) of the same Article provides that "the Labor Relations Commission may repeatedly impose and collect a non-performance penalty under paragraph (1) not later than twice every year until the order for remedy is complied with within the limit of two times from the date the first order for remedy is issued." Article 13 [Attachment Table 3] of the Enforcement Decree of the Labor Standards Act provides that "The specific amount of non-performance penalty shall be determined by considering the motive, degree of negligence, etc. caused by the act of violation, degree of employer's liability for remedy, degree of effort to comply with the order for remedy, etc."

2) Comprehensively taking account of the overall purport of the arguments in the evidence Nos. 7, 8, and 4, 5, and 6, C filed a civil lawsuit against the Plaintiff for the payment of compensation in excess of the compensation pursuant to the order for remedy of this case and seized real estate owned by the Plaintiff, but it is deemed that the Plaintiff could be exempted from liability for nonperformance of the order for remedy by depositing the monetary compensation pursuant to the order for remedy of this case to the court. Thus, it is difficult to deem that there was a justifiable reason for the Plaintiff’s failure to comply with the order for remedy of this case.

The following circumstances are as follows: ① the Labor Relations Commission’s order of remedy is to restore the worker’s right infringed by the employer’s disciplinary action to its original state by recognizing the illegality of unfavorable disposition, such as dismissal of the worker. Such reinstatement is not a formal reinstatement, but a substantive reinstatement. As such, the order of remedy is implemented in the form of an order of compensation equivalent to wages by recovering the economic disadvantage of the worker during the period of dismissal, along with the form of the order of compensation for reinstatement of the infringed worker’s right to his/her original position. ② The purpose of remedy order is to temporarily and rapidly resolve the living conditions of the worker who has not received wages by failing to provide labor for a certain period of time due to unfair dismissal, etc. ② The purpose of remedy order is to temporarily resolve the living conditions of the worker who has not received wages by failing to provide labor for a certain period of time. ③ The system of compensation for non-performance, which was introduced by criticism that there is no proper means for the employer to secure the implementation of the order, ④ The Plaintiff’s prompt implementation of remedy order is not affected by the enforcement guidelines of the Labor Standards Act.

3. Conclusion

The plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge, the Korean Judge;

Judge New Date; and

Judges Yoon Dok-be