In a case where a worker who was dismissed before the company goes bankrupt, requested a substitute payment under the Wage Claim Guarantee Act to the Regional Labor Office after receiving the order of remedy and the court ruling indicating that the dismissal is unfair, but the above worker is a worker eligible for a substitute payment under Article 7 of the Enforcement Decree of the Wage Claim Guarantee Act, and the money and valuables that have not been actually paid during the period of dismissal are wages eligible for a substitute payment.

In a case where a non-eligible disposition of substitute payment is issued on the ground that a worker who was dismissed before the company becomes insolvent was ordered to remedy the Labor Relations Commission's order and the court's decision declaring that the substitute payment is unfair, and then filed a claim to the Regional Labor Office for substitute payment under the Wage Claim Guarantee Act, but is not "worker" eligible for substitute payment, the case holding that if the worker filed a separate lawsuit for claim for substitute payment and issued an order for substitute payment on the premise that the worker still has a status as a worker in the final and conclusive judgment of winning the lawsuit for claim for substitute payment and issued an order for substitute payment until the date of reinstatement after the dismissal on the premise that the worker still has a status as a worker, even if there was no real reinstatement, the worker still has a status as a worker until the date of the closure of the business,

Article 7 (3) of the Wage Claim Guarantee Act, Article 7 and Article 9 of the Enforcement Decree of the Wage Claim Guarantee Act

Plaintiff 1 and one other (Attorney Noh Sung-jin, Counsel for the plaintiff-appellant)

Head of Busan Regional Labor Office Busan East District Office

September 4, 2009

1. On April 27, 2009, the Defendant’s disposition that the Plaintiffs are not entitled to substitute payments shall be revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. On October 24, 2008, the non-party 1 corporation closed its business on the part of the company that operated the foul waste treatment business within the liquid waste purification tank. On November 12, 2008, the defendant filed an application for fact-finding, such as bankruptcy, against the non-party 1 corporation, and filed an application for fact-finding with the non-party 2.

B. (1) The Plaintiffs were dismissed on May 31, 2007 while serving in Nonparty 1 Company.

(2) On November 12, 2007, Busan Regional Labor Relations Commission accepted the plaintiffs' application for remedy against unfair dismissal, and ordered the non-party 1 corporation to remedy. The National Labor Relations Commission dismissed the application for reexamination on February 13, 2008.

(3) The non-party 1 corporation filed a lawsuit against the chairperson of the Central Labor Relations Commission against the chairperson of the Seoul Administrative Court 2008Guhap12382, but the judgment dismissing the non-party 1 corporation's claim was sentenced on January 16, 2009 (hereinafter "the judgment on the re-adjudication") and the above judgment became final and conclusive on February 18, 2009.

C. On March 6, 2009, the Plaintiffs claimed a substitute payment under the Wage Claim Guarantee Act to the Defendant, but the Defendant rendered a non-eligible disposition for substitute payment (hereinafter “instant disposition”) on April 27, 2009 on the ground that “The scope of a worker subject to substitute payment is a worker retired after one year prior to the date of the application for the recognition of bankruptcy, etc. ( November 13, 2007). The Plaintiffs were dismissed on May 31, 2007, and the court’s decision that the above dismissal was unfair under the actual effect of the above dismissal is difficult to deem that the substantial employment relationship was maintained retroactively. ② The money and valuables not received during the period of dismissal are not wages under the Labor Standards Act, but are equivalent to wages.”

[Basis] Facts without dispute, Gap evidence 1-1, 2, Gap evidence 2, Gap evidence 5-1, 2, Eul evidence 1-1 to 4, Eul evidence 3-1, 2, Eul evidence 4, and the purport of the whole pleadings

2. The legality of the instant disposition

A. The parties' assertion

(1) The plaintiffs asserted that the dismissal of the plaintiffs and the non-party 1 corporation's labor relations of the plaintiffs and the non-party 1 corporation maintained until October 14, 2008, which was closed by the non-party 1 corporation, and that the disposition of this case on the premise that the labor relations of the plaintiffs and the non-party 1 corporation terminated on May 31, 2007, which was dismissed, should be revoked illegally.

(2) The defendant argues that the remedy order of the Labor Relations Commission is not a legal relationship under the public law, and that the legal relationship under the private law is recovered only through a lawsuit seeking confirmation of nullity of dismissal or a lawsuit seeking confirmation of employee status, and that the decision in the review decision is not to mean that dismissal of the plaintiffs is null and void, and that the dismissal of the plaintiffs is not unfair. ② The plaintiffs received unemployment benefits after retirement, the plaintiffs filed a lawsuit claiming the payment of wages to the non-party 1 corporation, and the amount of wages was paid to the non-party 1 corporation, and ③ the amount of wages not received during the period of dismissal for which the plaintiffs did not provide labor is not a wage under the Labor Standards Act, but a substitute payment

B. Relevant statutes

It is as shown in the attached Form.

C. Facts of recognition

(1) The decision on the review decision held that “it is difficult to view that Nonparty 1 corporation has made an urgent managerial need to reduce the number of employees, but it is reasonable and fair to deem that it was in accordance with reasonable and fair criteria to select the Plaintiffs as persons subject to layoff, and that it was unreasonable to dismiss the Plaintiffs by Nonparty 1 corporation because it did not faithfully consult with the labor representative. Therefore, the dismissal of the Plaintiffs by Nonparty 1 corporation did not meet the requirements for layoff.”

(2) Article 7 of the collective agreement concluded between the plaintiffs and the non-party 1 corporation provides that "where it is found that the dismissed party is unfair by the judgment of the Labor Relations Commission or the court against the decision of the Labor Relations Commission or the court regarding the reduction of wages that the plaintiffs made by the labor and management agreement, even if the company is dissatisfied with the decision of the Labor Relations Commission and the court, it shall be paid 10% of the average wages that the dismissal party would immediately return to the original position, recover the working conditions, and pay unpaid wages at the time of attendance.

(3) ① Plaintiff 1 filed a lawsuit against Nonparty 1 on June 3, 2008 seeking the payment of wages at this court No. 2008Gada40007, and received a favorable judgment on June 3, 2008. In the appellate court, Plaintiff 1 filed a lawsuit against Nonparty 1 on the ground that “the dismissal of Plaintiff 1 against Plaintiff 1 was proved to be unfair dismissal by the Labor Relations Commission’s decision or decision. Therefore, Nonparty 1 was liable to pay the average wages from the day after the Plaintiff was dismissed pursuant to Article 7 of the collective agreement until he/she is reinstated to Nonparty 1 (this Court Decision 2008Na10577), and the judgment of Plaintiff 1 became final and conclusive on May 15, 2009. ② Plaintiff 2 filed a lawsuit against Nonparty 1 corporation for the payment of wages at this court No. 2008Ga250533, Jul. 29, 2008 with the judgment of the lower court for the pertinent case No. 2081.

(4) Meanwhile, during the period from June 1, 2007 to December 5, 2007, Plaintiff 1 was paid KRW 5,293,230, Plaintiff 2 was paid KRW 5,251,130 as the respective unemployment benefits (job-seeking benefits), and Plaintiff 1 was paid KRW 5,78,863 out of KRW 6,467,42 among the wage claim 6,467,42, and Plaintiff 2 was paid KRW 5,725,253 out of the wage claim 6,407,42.

[Reasons for Recognition] Facts without dispute, Gap evidence 3, 6, Gap evidence 7-1, 2, and Gap evidence 8, the purport of the whole pleadings

D. Determination

(1) Whether the person is a worker eligible for a substitute payment

The order of remedy by the Labor Relations Commission is an obligation under the public law to obey it to the employer, and does not directly create or modify a legal relationship between labor and management, but the judgment of winning was finalized by filing a separate wage claim lawsuit, and this judgment is based on the premise that the dismissal is null and void and still has a status as an employee, if the order of wage payment is issued after the dismissal, the above employee shall be deemed to have a legitimate and effective labor relationship (see Supreme Court Decision 93Da33173, Jun. 28, 1994).

In light of the above facts, the Labor Relations Commission or the court's decision under Article 7 of the collective agreement between the plaintiffs and the non-party 1 corporation provides that the plaintiff shall immediately restore to their original position, restore the working conditions, and pay the average wage. Although the non-party 1 corporation received a remedy order, the plaintiffs who did not restore the plaintiffs and did not pay the wages, the plaintiffs filed a separate lawsuit for claiming wages, and the winning decision was affirmed. The above judgment on each of the above claims for wages can be acknowledged that the plaintiffs still have the status of workers of the non-party 1 corporation pursuant to Article 7 of the collective agreement and ordered the payment of wages until the time of reinstatement. Thus, even if there was no real reinstatement, the plaintiffs had the status of workers of the non-party 1 corporation until October 14, 208.

Therefore, the Plaintiffs are workers retired from office after November 12, 2008, which was the date of application for fact-finding such as the bankruptcy of Nonparty 1 Company, and thus, they constitute workers eligible for substitute payment pursuant to Article 7(3) of the Wage Claim Guarantee Act and Article 7 of the Enforcement Decree of the Wage Claim Guarantee Act.

(3) In light of the above legal principles, the court below's decision that the plaintiffs paid unemployment benefits and paid the amount equivalent to the amount equivalent to the amount equivalent to the wages of the plaintiffs and the non-party 1 corporation does not recover. However, since the court's decision that ordered the payment of wages to the non-party 1 corporation on the premise that the plaintiffs have the status of workers of the non-party 1 corporation, even if unemployment benefits and dividends were paid, they are merely a matter that should be resolved by the return order or substitute payment under the Employment Insurance Act, and therefore, it does not change whether the plaintiffs are the workers' status. Thus,

(2) Whether a substitute payment is a wage eligible for a substitute payment

In the judgment on each claim for wages, the non-party 1 corporation should pay the "wages" to the plaintiffs pursuant to Article 7 of the collective agreement. ② As seen earlier, the status of the plaintiffs is recognized until October 14, 2008 when the non-party 1 corporation discontinued, the non-party 1 corporation is a worker who provides labor for the purpose of wages and the employer pays wages to workers as compensation for work. Thus, as long as the plaintiffs are workers of non-party 1 corporation, the non-party 1 corporation shall pay wages to the plaintiffs unless there are special circumstances. ③ Even if the plaintiffs did not actually provide labor after dismissal, it is due to the reasons attributable to non-party 1 corporation which was not reinstated and the disadvantage to the plaintiffs is contrary to the purport of the Wage Claim Guarantee Act and the principle of self-responsibility or responsibility for default. Thus, the money and valuables not received by the plaintiffs are not equivalent to the amount of wages, but is subject to substitute payment itself.

(3) Therefore, the instant disposition, based on the premise that the Plaintiffs and the Plaintiffs’ unpaid money and valuables are not subject to substitute payment, is unlawful.

3. Conclusion

Therefore, the claim of this case is justified and it is so decided as per Disposition.

[Attachment] Relevant Statutes: omitted

Judges Cho Sung-sung (Presiding Judge)