(B)Revocation of revocation of disposition imposing enforcement fines, 2012Nu1438

A Stock Company

Jeonbuk Regional Labor Relations Commission

Jeonju District Court Decision 2012Guhap734 Decided September 18, 2012

December 3, 2012

December 17, 2012

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance is revoked. On June 23, 2011, the Defendant revoked the imposition of enforcement fines of KRW 13 million against the Plaintiff.

1. Quotation of the first instance judgment

The reasoning for the court’s explanation on the instant case is as stated in the judgment of the court of first instance, except for the following parts, and thus, this Court’s explanation is acceptable in accordance with Article 8(2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

As set forth in Section 3(f) above, the Defendant made a decision as follows. The Defendant issued a disposition imposing a total of KRW 13 million (6.5 million for each of the above employees) of enforcement fines on the ground that the Plaintiff’s failure to implement the remedy order with respect to B and C during the pertinent remedy order on June 23, 2011.

○ 4 3 3 3 3 4 and 4 4 'the period during which those persons participated in the strike (from December 8, 2012 to April 6, 2011 and from December 8, 2012 to April 4, 2014)' shall be "the period during which those persons participate in the strike (from December 8, 2010 to April 6, 201 and December 8, 2010 to April 14, 201)."

Article 33(1) of the Labor Standards Act provides that a 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 performance after receiving the order for remedy. Article 79 Subparag. 2 of the Labor Relations Commission Regulations (amended by Rule 21 of the National Labor Relations Commission Regulations of July 10, 2012) provides that the performance of the obligation to pay an amount equivalent to wages shall be determined on the basis of whether the amount has been paid in full by the deadline for performance of the order for remedy.

According to the evidence in the process of the above disposition, the defendant issued a remedy order in this case where "the plaintiff was served on December 27, 2010 and the amount of wages that the plaintiff could have received if he had worked during the period of dismissal" within 30 days from the date of receiving the written judgment. The defendant notified the plaintiff on January 17, 201 and reached the plaintiff around that time. Nevertheless, the plaintiff did not pay the wages of the above worker during the period of the strike (B: from December 8, 2010 to April 6, 2011; C: December 8, 2010 to April 14, 2011). Therefore, the issue of this case is whether the plaintiff had an obligation to pay the amount equivalent to the wages of the above worker during the period of the strike.

However, in cases where dismissal of workers is null and void, barring any special circumstance, an employee would have failed to provide labor due to reasons attributable to the employer even though the labor contract relationship remains effective, and thus, barring any special circumstance, a claim for wages, which may be received in return for the provision of labor during that period, may be made pursuant to Article 538(1) of the Civil Act: Provided, That even if dismissal was null and void, in cases where the employer actually is unable to provide labor due to reasons attributable to the employer, or where the employer discontinues his/her business due to reasons attributable to the employer, he/she cannot claim wages during that period. Meanwhile, labor without labor caused by industrial action cannot be deemed a cause attributable to the employer even if the industrial action is lawfully conducted, and barring any special circumstance, the employer has no obligation to pay wages during that period for the worker who has not participated in the industrial action (see Article 44(1) of the Trade Union and Labor Relations Adjustment Act). In full view of this, it is reasonable to deem that, even if dismissal was null and void, if the relevant worker did not provide labor during that the industrial action was actually impossible.

However, it should be deemed that the act of failing to provide labor during the period of industrial action, such as a case where an industrial action occurs directly due to an invalid dismissal of the relevant worker, can still claim wages in the case where there are special circumstances to deem that there are causes attributable to the employer.

In addition, whether it is evident that an industrial action did not provide labor by participating in the industrial action even if there was no dismissal in the above case, shall be determined carefully in consideration of all the circumstances such as the circumstances leading to the industrial action and the cause of the industrial action, the relationship with the grounds for dismissal, the status and role of the relevant worker in the strike, the number of workers involved in the industrial action that was actually conducted, the number of workers involved in the industrial action that was interrupted by such action, the reason for dismissal and the transfer of work attitude for the relevant worker, etc. The burden of proof lies on the employer (see Supreme Court Decision 2010Da9279, Sept.

However, although B and C participated in the strike for the preceding period until they are reinstated from their original position, there is no material or evidence that even if they had not participated in the strike and had not provided labor, even if they were not dismissed from their original position (in the case of B, the plaintiff was arguing that the dismissal of the above workers was not unfair, and even after the case of remedy for the above workers was terminated by the National Labor Relations Commission, it is reasonable to view that the plaintiff did not provide them with an opportunity to provide labor until they are reinstated from their original position). The meaning of the amount equivalent to wages that the plaintiff would have been entitled to receive if they had provided labor during the period of time in the remedy order in this case is the date of unfair dismissal of the above workers (in the case of B, from July 29, 201; July 6, 2010 to the date before the date of the above worker's dismissal (in the case of C, from the date of the above worker's dismissal to the date of the above worker's dismissal). Therefore, the plaintiff's dismissal cannot be viewed as the whole amount equivalent to C's wages during the period of 4.

For this reason, the plaintiff paid each retirement allowance after the dismissal of the above worker, and paid all wages by offsetting the total amount of wages during the remaining period excluding the period during which the above worker participated in the strike with the automatic retirement claim. Rather, the plaintiff should receive the remaining surplus from the above worker. Since the above surplus exceeds the wages in arrears during the period of the strike, the above worker also received all wages in arrears during the strike period (this part of the plaintiff's assertion is referred to as an expression of set-off against wages in arrears during the strike period).

In full view of the purport of arguments as to Gap evidence 2-2, 3-2, 4-1, 2, 5-1 through 3, and Eul evidence 5-1, the plaintiff paid 24,963,130 won to Eul on September 30, 2010, and 15,390 won respectively after the dismissal of the above worker as retirement allowance; ② The wages in arrears other than the period for the above worker's participation in the strike from the dismissal to the original worker's reinstatement; ② the total amount of KRW 9,87,51,030; KRW 10,851,030; KRW 30; KRW 10,51,030; ③ the amount of the remaining wages in arrears for the above worker's total of KRW 30,50 (B120, C128); and ③ the amount of wages in arrears other than the average wages for the above worker's total of KRW 86,286,167,297

The amount of money that an employer has already paid to an employee as a retirement allowance shall not have the effect as a retirement allowance payment in case the dismissal is null and void, and thus, the employer shall not have the above-mentioned claim for return of unjust enrichment equivalent to the retirement payment paid to the employee. However, when setting off the amount with automatic bonds, it shall be deemed that only the amount exceeding 1/2 of the employee’s wage claim against the employer is allowed under Article 246(1)5 of the Civil Execution Act and Article 497 of the Civil Act (see Supreme Court en banc Decision 2007Da90760, May 20, 2010).

In light of such legal principles, even if the amount of money paid by the Plaintiff to B and C as retirement allowance is offset against the amount equal to the wage claim of the said worker during each strike period against the Plaintiff, the above amount equivalent to 1/2 of each wage claim is still liable to pay to the said worker. Thus, the Plaintiff’s above assertion on the premise that the said worker had no obligation to pay the total amount of wages in arrears during the strike period is groundless.

2. Conclusion

Therefore, the judgment of the first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

The senior judge of the presiding judge;

Judges Lee Jae-soo

Judges Park Sang-hoon

1) According to the records, the instant order includes the portion to be reinstated B and C within 30 days from the date of receipt of the written adjudication, but the grounds for the instant disposition were not included in the original part, and thus, the instant order is only determined to be unpaid during the period of the strike, which falls under the grounds for the instant disposition.