[1] In order to determine whether there was discriminatory treatment prohibited under Article 8(1) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers, the standard for determining whether the work of a worker selected as an employee subject to comparison constitutes the same or similar work of a fixed-term worker

[2] The meaning of “unfair treatment” under Article 2 subparag. 3 of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers and the standard for determining whether there are reasonable grounds

[1] Article 8(1) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers provides that “An employer shall not give discriminatory treatment to workers who have entered into an employment contract for the same or similar kind of work at the pertinent business or workplace on the ground that they are fixed-term workers, compared with those who have entered into an employment contract for a fixed-term worker.” In order to determine whether there has been discriminatory treatment to fixed-term workers, “worker who entered into an employment contract for the same or similar kind of work at the pertinent business or workplace” refers to a worker subject to comparison who enters into an employment contract without a fixed-term worker period. Whether a worker selected as a worker subject to comparison falls under the same or similar kind of work as a fixed-term worker, not the work stipulated in the employment rules or employment contract, but rather the work actually performed by the worker. However, even if the work performed by him is not entirely inconsistent with each other and there are some differences in the scope

[2] Article 2 subparag. 3 of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers defines discriminatory treatment as “unfavorable treatment in terms of wages, other working conditions, etc.” The term “unfavorable treatment” refers to the overall disadvantage to fixed-term workers by treating workers differently from fixed-term workers in terms of wages, other working conditions, etc. The term “where there is no reasonable ground” means the case where there is no need to treat a fixed-term worker differently, or where the method and degree are inappropriate even in cases where the need to treat a different fixed-term worker is recognized. Furthermore, whether reasonable grounds exist should be determined by comprehensively taking into account the details of the unfavorable treatment in question and the circumstances in which the employer took the grounds for unfavorable treatment in individual cases, such as the form and scope of employment, authority, responsibility, wage and other working conditions, etc. of a fixed-term worker.

[1] Article 8(1) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers / [2] Article 2 subparag. 3 of the Act on the Protection, etc. of Fixed-Term and Part

National Bank of Korea (Attorney Han-il et al., Counsel for defendant-appellee)

The Chairman of the National Labor Relations Commission

As shown in the attached list (Law Firm Citizens, Attorneys Kim Dong-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2010Nu20241 decided January 28, 2011

All appeals are dismissed. The costs of appeal are assessed against each appellant.

The grounds of appeal are examined.

1. Plaintiff’s ground of appeal

A. As to the first ground for appeal

Article 8(1) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (hereinafter “ Fixed-Term Act”) provides that “An employer shall not give discriminatory treatment to workers who have entered into an employment contract without a fixed period of time engaged in the same or similar kind of work at the relevant business or workplace on the ground that they are fixed-term workers, compared with those who entered into an employment contract on the ground that they are fixed-term workers.” In order to determine whether there was discriminatory treatment against fixed-term workers, the employer cited “worker who entered into an employment contract without a fixed period of time engaged

Whether the work of a worker selected as an employee subject to comparison falls under the same or similar work of a fixed-term worker shall be determined on the basis of the work actually performed by the worker, not the work details specified in the rules of employment or labor contract. However, even if the work performed by the worker is completely inconsistent with each other and is somewhat different from the scope of the work, responsibility, authority, etc., unless special circumstances exist, they shall be deemed to have engaged in the same or similar work

According to the reasoning of the judgment of the court below, the court below accepted the judgment of the court of first instance and recognized the facts as stated in its reasoning. The court below determined that the plaintiff's business marketing and internal control inspector and internal control inspector are workers subject to comparison under Article 8 (1) of the Fixed-term Product Act, who are employees in charge of internal control inspection (hereinafter referred to as "participatings") by taking into account the following: (a) the plaintiff, under their name, assigned business marketing to the employees in charge of business marketing and internal control inspection (hereinafter referred to as "business marketing and internal control inspector") as their main duties; (b) although they did not manage and supervise the business marketing; (c) the business marketing performance was not considered as an important element for evaluation of the business performance; and (d) the plaintiff seems to have been properly performed such duties as recording the results of the internal control inspection every day; and (e) the plaintiff appointed an employee in exclusive charge of internal control inspection as an employee of the wage peak system and had them perform the internal control inspection duties assigned to them.

Examining the above legal principles and the reasoning of the judgment below in light of the records, the above judgment of the court below is just, and there is no violation of law by misapprehending legal principles.

B. Regarding ground of appeal No. 2

Article 2 subparag. 3 of the Fixed-term Act defines discriminatory treatment as “unfavorable treatment in terms of wages, other working conditions, etc. without reasonable grounds.”

The term "unfair treatment" refers to the overall disadvantage of fixed-term workers by treating fixed-term workers differently from fixed-term workers in terms of wages and other working conditions, etc., and where there is no reasonable ground, it refers to the case where the necessity of different treatment is not recognized, or where the necessity of different treatment is recognized, the method, degree, etc. is inappropriate. Whether reasonable grounds exist shall be determined by comprehensively taking into account the details of unfavorable treatment in individual cases, the form of employment of fixed-term workers, the contents, scope, authority and responsibility of work, wage, and other working conditions, etc.

According to the reasoning of the judgment of the court below, the court below accepted the judgment of the court of first instance, and determined that it cannot be deemed that there is a reasonable ground for the plaintiff to pay the participants with the heavy food and commuting expenses, considering the following: (a) it is disadvantageous treatment that the plaintiff paid them at a lower amount than the heavy food and commuting expenses for the business marketing, internal control inspectors, and self-control inspectors, who are workers in need of comparison with the heavy food and commuting expenses; and (b) it is difficult for the plaintiff to directly link them with the long-term continuous service, in light of the circumstances in which the plaintiff paid the heavy food and commuting expenses to other fixed-term workers, such as the telesur service and the support position, and the Plaintiff paid them for the heavy food and commuting expenses.

Examining the above legal principles and the reasoning of the judgment below in light of the records, the above judgment of the court below is just, and there is no violation of law by misapprehending legal principles.

2. As to the Defendant’s ground of appeal

According to the reasoning of the judgment of the court below, the court below accepted the judgment of the court of first instance, that the annual remuneration of a business marketing and internal control inspector is set at 50% or 42% prior to the conversion of the wage peak system, and 80% of the annual remuneration set as above is based on the basic salary, etc., and since the remaining 20% of the annual remuneration is different from the annual remuneration, it does not constitute an additional annual remuneration fixed in terms of concept, but constitutes part of the annual remuneration. For this reason, the court below determined that the annual remuneration of a business marketing and internal control inspector is merely an annual remuneration when he receives a G grade which is an intermediate grade from the evaluation, and that the annual remuneration of a business supervisor is lower than 95% or 90%, and that the annual remuneration of a business participant who did not receive changes in the annual remuneration of a business participant who did not receive changes in the annual remuneration of a business participant who did not receive changes in the annual remuneration of 20% from the previous year, it is more reasonable that the Plaintiff would have to receive changes in the annual remuneration from the previous year.

Examining the aforementioned legal principles and reasoning of the lower judgment in light of the records, the lower court’s aforementioned determination is justifiable. In so doing, it did not err by misapprehending the legal principles alleged in the grounds of appeal.

3. Conclusion

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

[Attachment] List of Intervenor joining the Defendant: omitted

Justices Min Il-young (Presiding Justice)