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

The Chairman of the National Labor Relations Commission

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

may 2, 2008

1. On July 24, 2007, the National Labor Relations Commission’s decision on the review application case between the Plaintiff and the Defendant’s Intervenor on July 24, 2007 as to the unfair suspension of duties and suspension of duties and unfair suspension of duties, and the application case for reexamination of unfair dismissal remedy is revoked.

2. Of the costs of lawsuit, the supplementary participation costs are assessed against the Defendant, and the remainder is assessed against the Defendant.

The same shall apply to the order.

1. The circumstances leading to the decision on reexamination of this case

A. The Plaintiff is a cooperative that employs 130 full-time workers and engages in economic business and credit business, etc., and the Intervenor 1 (hereinafter “ Intervenor 1”) was subject to suspension of duties and standby notice from the Plaintiff’s union on September 28, 2006 while he joined the Plaintiff’s union on March 2, 1987 and worked as an agent in charge at the Southern flood point. The Intervenor 2 was a person whose labor contract was terminated on October 9, 2006 on the ground of the expiration of the contract term from the Plaintiff’s union on October 21, 2006 while he was employed as a contracting worker at the Plaintiff union on October 21, 200, while he was employed as an agent in charge of the Plaintiff’s union on November 21, 2006. The Intervenor 3 was a person whose labor contract was terminated on the ground of the expiration of the contract term from the Plaintiff union on November 21, 2006.

B. On December 28, 2006, the intervenors filed an application for remedy by asserting that the suspension of duties and standby order for each of the above labor contracts constituted unfair suspension of duties, unfair standby order, unfair dismissal, and unfair labor practices with respect to suspension of duties, unfair standby order, unfair dismissal, and unfair dismissal on March 9, 2007, the Gyeongnam Regional Labor Relations Commission accepted the application for remedy in relation to the above unfair suspension of duties, unfair standby order, unfair dismissal, and unfair dismissal, and recognized that the above suspension of duties and standby order is unfair dismissal, and the termination of each of the above labor contracts is unfair dismissal. The Plaintiff Union revoked the above suspension of duties and standby order against the Intervenor 1, and ordered the Intervenor 2 and 3 to remedy the amount equivalent to wages that could have been paid if the Intervenor were reinstated to his original position and had worked normally. In relation to the above application for remedy, it dismissed the application for remedy.

C. On April 12, 2007, the Plaintiff Union filed an application for reexamination with the National Labor Relations Commission as to the above remedy order as 2007 No. 320 on April 12, 2007. Meanwhile, on April 10, 2007, the intervenors filed an application for reexamination of unfair labor practice with the National Labor Relations Commission as 2007 No. 105 on April 10, 2007, and the National Labor Relations Commission dismissed all of the applications filed by the Plaintiff Union and the Intervenor for reexamination (hereinafter “instant decision”).

[Judgment of the court below] The facts of appeal Nos. 1 and 2

2. Whether the decision on the retrial of this case is lawful

A. The plaintiff union's assertion

1) Since an intervenor 1 was involved in an accident that causes monetary damage to the Plaintiff Union by dealing with loan business without violating the provisions on several occasions in the course of serving the Plaintiff Union as a member, the Plaintiff Union issued the instant suspension of duties and standby order to the Intervenor 1 in accordance with Articles 62 and 90 of the Personnel Regulations in order to prevent and control the expansion of the above accident, and thus, the said suspension of duties and standby order constitutes the exercise of legitimate personnel authority.

2) Both the Intervenor 2 and 3 are contractual workers and part-time assistant workers whose continuous work period in the Plaintiff Union exceeds five years, and as a result of evaluating their work performance from the quarter of April 4, 2005 to March 4, 2006, the Plaintiff Union obtained the average of less than 70 points as a result of the assessment of work performance under the average of less than 70 points as a result of the assessment of work performance from the quarter of March 2006. Thus, the Plaintiff Union terminated each of the instant employment contracts without renewal of the employment contract with the aforementioned intervenors pursuant to the provisions on the management of contractual employees and the provisions on the part-time assistant business operation rules. Thus, the termination of each of the above employment contracts constitutes a rejection of renewal of the employment contract

3) Accordingly, the review ruling of this case, which was otherwise determined, should be revoked in its entirety as unlawful.

(b) Fact of recognition;

1) The part related to the intervenor 1

A) On March 2, 1987, the said intervenor entered the Plaintiff’s association and carried out the loan management work at the upper salary point from October 28, 1998, the credit management work at the principal office from March 22, 2001, the loan management work at the new draft point from February 11, 2003, and the loan management work at the new draft point from December 1, 2004, respectively.

B) On September 28, 2006, the Plaintiff Union issued “a standby order following the suspension of duties from September 29, 2006 to the order of reinstatement” pursuant to Articles 90 subparag. 1 and 62(1)3 of the Personnel Regulations on the ground that “the suspension of duties is required to prevent and remedy the occurrence of an unforeseen accident” against the said Intervenor.

C) On September 29, 2006 and October 2, 2006, the said intervenor demanded the Plaintiff’s association to verify the specific reasons for the suspension of duties and the standby order through the document stating “specific reasons for the suspension of duties”. Accordingly, on October 2006, the Plaintiff association responded that the Plaintiff’s association erred in dealing with loans to Nonparty 1, 2, 5, and 3 of the said intervenor.”

D) The details of the loan recommendations made by the Plaintiff Union as the ground for the instant suspension of duties and the instant standby order against the said Intervenor are as follows.

(1) On May 25, 200, when the above intervenor was working at the regular salary point, he loaned KRW 10 million to Nonparty 1 under the joint and several guarantee of Nonparty 6. In the process of handling the above loan, the intervenor was unfairly appropriated for the repayment of the loan interest and interest of others by Nonparty 1 without Nonparty 1’s permission. The plaintiff union was not paid KRW 6709,739,739, which was unfairly appropriated for the above 10 million loan from Nonparty 1.

(2) On October 26, 200, the said intervenor loaned 15 million won to Nonparty 2, who was working at the regular salary point, who was an employee of the Dong fee, under the joint and several sureties 7 and 8, and the documents required at the time of the loan are not properly kept (the loan transaction agreement, personal credit survey, loan consultation and application are all written in the body of other person who is not the written body of the above intervenor) and the inquiry table on the financial transaction information for Nonparty 2 currently kept is not at the time of the above loan, but at the time of the above loan. In relation to the loan, the non-performing 3,391,585 won was non-performing loans.

(3) On September 25, 2003, when the above intervenor was working at the new draft branch, the intervenor loaned 30 million won to the non-party 5. On July 2004, the non-party 5 sought the above intervenor and "the company run by himself was in excess of other investors," and the investors want to accept only a loan that is not a credit loan among the company's obligations, and the above intervenor requested that the above intervenor be able to accept the above loan." The above intervenor signed and sealed the loan transaction agreement on the front joint and several sureties of the loan transaction agreement upon the non-party 5's request. However, Article 12 (1) of the service regulations of the plaintiff union stated that "the plaintiff's employee was not a guarantor for the plaintiff union, etc.," and that the above intervenor's expression of intent was not known to the above plaintiff's non-party 206's non-party joint and several sureties's expression of intent against the above plaintiff's union's non-party 206.

(4) On September 24, 2004, when the above intervenor was working at the new draft branch, 100 million won was loaned to Nonparty 3 under the joint and several guarantee of Nonparty 4. At the time, 2.2 billion won was already extended to Nonparty 4 at the time, and as such, in granting additional loans to Nonparty 3, who is Nonparty 4’s wife, as seen above, 10 million won was confirmed by examining the property and occupation of Nonparty 3, who was in the same household with Nonparty 4 in accordance with the loan operation manual of the Plaintiff union, and then submitted the above loan to the loan review committee. However, the above intervenor conducted the above loan by the general loan procedure without examining the above matters at the time, and the above loan was still not repaid to the Plaintiff union, and in relation to this, the auction procedure for Nonparty 4’s real estate is in progress.

E) On December 6, 2007, the Plaintiff Union was subject to disciplinary action on the ground that “the Intervenor caused an accident that causes monetary damage to the Plaintiff Union by dealing with loan business without any violation of the provisions on several occasions in the process of serving in the Plaintiff Union.”

F) The relevant provisions of the Plaintiff Union are as follows.

【Personnel Regulations】

Article 62 (Air)

(1) Where an employee falls under any of the following subparagraphs, he/she shall not assign a position or duties and may issue a standby order:

3. Where an order for ex officio or for suspension of business has been issued.

4. When they are presented to the personnel committee for disciplinary reasons;

5. Where it is necessary for the administrative affairs of our cooperatives.

Article 90 (Grounds)

Where an employee has any of the following grounds, he/she shall be ordered to suspend ex officio the employee of Grade IV or higher, and to suspend his/her duties for employees of Grade V or lower:

1. Where it is necessary to suspend ex officio or duties of an offender or a person concerned in order to prevent and control the expansion of a case due to a serious illegal or unexpected accident;

Article 91 (Person Entitled to Order)

Ex officio or suspension from office shall be ordered by the president of a cooperative.

Article 92 (Presentation of Committee)

A standby for a person whose official duties are suspended shall be issued and referred to the Personnel Committee.

【Personnel Benefit Regulations】

Article 8 (Benefits during Leave, Leave of Absence, Air Force, or Suspension from Office)

The salary during the period of leave, leave of absence, atmosphere, or suspension shall be as specified in attached Form.

[In the case of member agricultural cooperatives in attached Form of Employee Benefit Regulations]

Article 8 (Benefits during Leave, Leave of Absence, Air Force, or Suspension from Office)

(4) Benefits during the waiting period shall be paid in accordance with the following subparagraphs:

1. A waiting person for accidents and clerical services: The amount equivalent to 80/100 of the fixed benefits;

Article 40 (Benefits During Leave, Leave of Absence, Air Force, or Suspension Period)

The provisions of Article 8 shall apply mutatis mutandis to the salary during the period of leave, leave of absence, atmosphere, and suspension from office, and the term "amount equivalent to 80/100 of the fixed salary" shall apply mutatis mutandis to "amount equivalent to 65/100 of the standard monthly salary," and the term "principal salary" to "amount equivalent to 50/100 of the standard monthly salary."

Article 57 (Suspension of Salary or Salary Payment)

(1) A promotion shall be postponed in cases of disciplinary action, etc. for the following periods:

3. Air (excluding retirement age): The waiting period;

【Provisions of Service】

Article 12 (Prohibition of Guarantee Act)

(1) No employee shall be a transferee or guarantor of another person for the identity of a union, another union, the National Federation, or any member.

2) The part related to the intervenor 2 and 3

A) Under the National Agricultural Cooperative Federation’s instruction, the Plaintiff Union employed contractual employees and part-time assistants, such as the above intervenors, in order to improve productivity, improve manpower management, and reduce personnel expenses, and as a matter of principle, assigned them to regular employees. The Plaintiff Union, in line with the National Agricultural Cooperative Federation’s instruction, had contractual employees and part-time assistants, such as the above intervenors, perform duties such as recovery of claims and support for the business of marina operated by the Plaintiff Union.

B) The written employment contract signed by the Plaintiff Union between October 9, 2005 and October 14, 2005 with the above intervenors is as follows: ① the contract term is from October 9, 2005 to October 8, 2006 (in case where the intervenor 2) and November 15, 2005 to November 14, 2006 (in case the above intervenors fall under the reasons for the termination of the contract terms and the part-time assistant management rules, the Plaintiff Union terminated the employment contract regardless of the contract term; ② the contract term is not more than five years after the contract term is employed as contract workers and part-time assistant workers; ④ the labor contract term is not more than 70 years after the contract term is extended to 10 years for each of the above intervenors, and the labor contract is renewed to 10 years after the contract term is extended to 10 years for each of the above intervenors (in case where the above intervenors’ employment contract is extended to 10 years after 20 years for each of the above intervenors.

C) The Plaintiff Union: (a) by the method of making two evaluators more than a year up to 2003; (b) around 2004, four evaluators more than a year were divided into four parts per quarter of a year; (c) responsibility for the assessment of each contracting employee and part-time assistant (in a manner that faithfully performs the duties in charge, and takes responsibility for the result of the duties) ; (d) work knowledge and judgment (in a manner that prompt and accuracy of the performance of duties, degree of work knowledge necessary for the performance of duties) ; (e) cooperation in humanization team (including union members as members of the organization, degree of cooperation with commercial affairs, degree of humanization and harmony among the employees), service personnel (including service personnel, friendship, fair performance), service attitude and character behavior ( compliance with the service regulations, examples, speech and behavior, etc.); and (e) average points assigned to each contracting employee and part-time assistant (i.e., average points (i., 201-13-14-17), (ii) 1-14-7).7

D) In the evaluation of work performance conducted by the Plaintiff Union from October 1, 2005 to September 30, 206, the Intervenor 2 obtained 69.7 points from October 1, 2005 to December 31, 2005, ② 67.0 points from January 1, 2006 to March 31, 206; ③ 67.5 points from April 1, 2006 to June 30, 2006; ④ from July 1, 2006 to September 30, 2006 to 6.7.7 points from July 1, 2006 to 6.7.7 points from the average of 6.7 points from September 30, 2006 to 6.7.7 points from September 30, 2006; and the Intervenor 3 points from January 1, 2005 to 16.7.6.7.6, 2007.

E) At the time of September 2006, the number of employees of the Plaintiff Union was 126, with 91 full-time employees, and 35 non-regular employees such as the above intervenors. However, until September 21, 2006, the Plaintiff Union had renewed the employment contract with the non-regular employees who have worked for more than 5 years pursuant to Article 24 of the collective agreement concluded on July 31, 2003. However, since September 206 when the collective agreement became null and void, the said collective agreement did not renew the employment contract with the non-regular employees who have worked for more than 5 years except 6 years (the Plaintiff Union was notified that the said six persons are already renewed the employment contract). Accordingly, the Plaintiff Union terminated each of the instant employment contract on the grounds that the continuous employment period exceeds 5 years for the above intervenors.

F) The relevant provisions of the Plaintiff Union are as follows.

【Rules for Management of Contract Employees】

Article 11 (Period of Employment Contract)

(1) The term of a labor contract for contractual employees shall not exceed one year.

(2) When the term of a labor contract under paragraph (1) expires, the head of an association may re-contract within one year: Provided, That the term of continuous work as a contract worker in this association shall not exceed the maximum of five years.

Article 12 (Recontract)

(1) A re-contract shall be entered into by preparing an employment contract at an association ten days before the end of the contract term.

(2) Where the contract is not renewed, the contract shall be notified to the contracting officer 30 days prior to the expiration date of the contract.

(4) Any person who is under an average of 70 points for evaluation of height completed two times during the term of a labor contract under Article 13 (1) during the term of a labor contract, any person who is subject to disciplinary action of reduction of salary or higher under Articles 18 through 21 and any person whose term of a contract in the atmosphere as prescribed in Article 12 (2) expires shall not be allowed to renew

Article 13 (Performance Appraisal)

(1) The evaluation of height shall be classified into the evaluation of work performance and additional evaluation.

(2) The result of an excessive rating shall be reflected in a re-contract, wage adjustment, etc.

Article 14 (Evaluation of Performance of Service)

(1) Work performance rating shall be conducted for contract-based employees according to the work performance rating table within six months from the date of contract and 30 days prior to the expiration date of contract.

(2) In principle, work performance ratings shall be assessed on the basis of a three-dimensional basis, and the person in charge of the relevant service, the person in charge of the second-class evaluation, the person in charge of the second-class evaluation, and the person in charge of the third-class evaluation

[Working Rules on Operation of Part-Time Assistants to Business]

Article 12 (Period of Employment Contract)

(1) The term of a labor contract for part-time business assistant shall not exceed one year.

(2) When the term of a labor contract under paragraph (1) expires, the head of the office may re-contract again within one year, if necessary: Provided, That in cases of business support positions and office support positions, the continuous period of work in this union shall not exceed five years.

Article 13 (Recontract)

(1) Articles 7 and 8 shall not apply to a re-contract made pursuant to Article 12 (2): Provided, That the same shall not apply to a re-preparation of the employment contract and keeping it together with the previous documents.

(2) No person who has been subject to disciplinary action of reduction of his/her salary or higher, whose average rating score is less than 70 points that has been conducted twice during the term of a labor contract, shall enter into a new contract.

Article 15 (Evaluation of Performance of Service)

(1) Part-time business assistant shall conduct work performance ratings in accordance with the work performance rating table for a part-time business assistant within six months from the contract date and thirty days before the contract expires.

(2) In principle, work performance ratings shall be conducted on a three-dimensional basis, and the person in charge of the relevant service, the person in charge of the second-class and the third-class evaluators shall be the head of the association in principle, and if necessary, up to five evaluators may be made.

【Collective Agreement】

§ 4. (Scope of Application) This Convention shall apply to agricultural cooperatives, cooperatives, and members. However, normative parts of working conditions shall apply to all employees.

Article 24 (Employment of Contract Workers and Operation of Part-Time Assistants) The re-contracts for non-regular workers shall be made in accordance with the working rules and contract rules for part-time assistant workers, but if the person in question wishes to continue to work, he/she may be allowed to continue to work regardless of the contract period, on the basis of his/her work performance records, but if there is T/O for contract workers, he/she shall preferentially employ a person who has worked for more than three years as a part-time assistant: Provided, That this shall not apply where the work of an employee is extinguished or his/her ability to perform such work is lost (Provided, That this shall not apply to cases where there

【Evidence 1-1, Gap evidence 2-4, Gap evidence 5 through 7-1, 2, Eul evidence 9, Gap evidence 10, 11-2, Gap evidence 13-1 through 7, Gap evidence 14, Gap evidence 16, Gap evidence 18-1, 2, Gap evidence 19, Gap evidence 20, 20-1, 23-1, 25-2, Eul evidence 33-1, Eul evidence 1-1, 2-1, 2-2, Eul evidence 2-1, 3-2, Eul evidence 2-1, 2-2, Eul evidence 1, 7-1 through 4-2, 12-1, 8-1, 2-1, 2-2, 3-1, 2-1, 2-2, 3-1, 2-2, 3-2, 1-1, 3-2-1, 2-2, 7-2, 7-

C. Determination

1) As to the Intervenor 1

A) Legal principles as to standby issuance

In order for a company to continuously maintain its activities, it is unnecessary to rearrange its labor force or adjust its supply and demand. As such, personnel orders, including a standby order, belong to the employer’s inherent authority, who is the personnel authority, in principle, and such personnel orders are recognized to the extent necessary for the business, but this is unlawful if the order constitutes an abuse of rights or an abuse of rights. Whether the standby order belongs to the scope of legitimate personnel rights shall be determined based on the necessity of the standby order, comparison and comparison with the worker’s living disadvantage and subsequent consultation with the worker, etc., and whether it goes through the procedure required by the principle of good faith in the course of issuing a standby order. Whether it goes through due process of consultation with the worker himself/herself is one element to determine whether it is a legitimate exercise of personnel rights, but it cannot be viewed that the standby order constitutes abuse of rights (see Supreme Court Decision 2003Da63029, Feb. 18, 2005).

B) Whether the instant suspension of duties and standby order belongs to the scope of legitimate personnel rights

In light of the above legal principles, the above facts are as follows: ① each loan extended to Nonparty 1, 2, and 3, among the loan businesses managed by the above intervenor, caused damage to the Plaintiff Union as a result; ② the loan extended to Nonparty 1 was erroneous in appropriating part of the cancellation fee of Nonparty 1’s installment savings to other persons without the permission of Nonparty 1, and the loan extended to Nonparty 3 did not closely examine whether the above provision on the loans extended to the same person according to the loan business manual of the Plaintiff Union was applied to the above participant; ③ under the above circumstances, the Plaintiff Union’s position need to prevent and respond to the expansion of the case by accurately ascertaining the facts of the above financial accident; ② the above loan extended to the Plaintiff Union before two years or six years from the suspension of duty and the suspension of duty for the Plaintiff Union’s employees and the suspension of duties for the reason that it is necessary to give the above suspension of duties within the scope of the above suspension of duties and the suspension of duties for the Plaintiff Union’s employees and the suspension of duties for the reason that the above Intervenor was not subject to the above suspension of duties for the Plaintiff Association’s personnel management authority.

C) Sub-decision

Therefore, the part of the decision of the retrial of this case, which judged otherwise, against the above intervenor, is illegal.

2) As to the Intervenor 2 and 3

A) The legal doctrine on the employment contract with a fixed period

Even in a case where an employee and an employer prepare a written labor contract fixing a period of time when concluding a labor contract, where it is deemed that a fixed period of time is merely a form of employment contract by comprehensively taking into account the content of the written contract, the motive and circumstances leading up to the execution of the labor contract, the purpose and genuine intent of the parties concerned, practices regarding the conclusion of the same kind of labor contract, the rules on the protection of workers, etc., notwithstanding the terms of the written contract, it shall be deemed that the written contract was concluded without a fixed period of time. However, if the above circumstances are not acknowledged, it is in principle that the written contract, which is a disposal document, was concluded for a fixed period of time between the employee and the employer (see Supreme Court Decision 2005Du2247

However, although the period stipulated in a labor contract is merely a form and does not reach the degree of employer's obligation to renew the contract for workers, if prior notice is provided at the time of renewal and renewal is concluded repeatedly with most workers, it is reasonable to deem that the period stipulated in such labor contract is not the period that the employment relationship is concluded uniformly but the renewal is allowed by renewal as the expiration of the period. In such a case, the principle of restriction on dismissal by analogy is more relaxed than the standard of restriction on dismissal, but the standard of reasonable reason recognized as reasonable by social norms should be applied. Therefore, refusal of the renewal of the labor contract without any reasonable reason can not be permitted under the principle of good faith.

B) Whether the period of each of the above intervenors’ employment contracts is merely a mere form

(5) In light of the above legal principles, the Plaintiff Union employed contractual workers and part-time assistants such as the above intervenors for the purpose of improving productivity, improving human resources management, and reducing labor costs. The contract employees and part-time assistant employees are subject to separate regulations and the contract terms and conditions, and the contract employees and part-time assistant employees are clearly distinguishable from the contract terms and conditions, and the contract terms and conditions of work performance rating and the contract terms and conditions are not clearly established for less than 7 years, and the contract employees and part-time assistant employees who were employed for less than 6 years after the conclusion of the contract. The Plaintiff Union continued to have concluded the contract for less than 6 years after the conclusion of the contract for the first time with the above intervenors, and the contract terms and conditions of the contract for less than 6 years after the conclusion of the contract for less than 6 years are not more than 0 years, and the average contract terms and conditions of the contract for less than 7 years after the conclusion of the contract for less than 6 years are less than 0 years.

C) Whether the termination of each of the instant employment contracts constitutes a refusal to renew an employment contract without reasonable grounds

(1) Even if a collective agreement concluded on July 31, 2003 was null and void, the defendant asserted that the provision of Article 24 of the said collective agreement shall continue to be effective until the conclusion of a new collective agreement to modify it as a part concerning the working conditions. However, the term of a labor contract is merely merely the term of a labor contract and does not constitute working conditions (see Supreme Court Decision 95Da5783, Aug. 29, 1996). Thus, the defendant's assertion on the premise that the term of a labor contract falls under working conditions is not acceptable.

(2) In addition, the defendant asserted that the above result of the performance evaluation on the above intervenors was invalid, where objectivity and fairness are lacking, on the ground that a part of the appraiser gives a lower point than other evaluators in the performance evaluation on the above intervenors from April 4, 2005 to March 4, 2006. However, as seen earlier, the performance evaluation standard for the contract-based employees and part-time assistant employees of the plaintiff union seems to be fair and reasonable in terms of the items of the performance evaluation or the method of calculating the performance rating. As such, the performance evaluation standard for the contract-based employees and part-time assistant employees under the contract-based employment management rules and the part-time assistant operation rules are required to follow the performance evaluation standard for the performance evaluation on the labor contract, so the appraiser is deemed to be careful in mind, and under the above circumstances, it is difficult to readily conclude that the performance evaluation result was objectively unfair solely on the ground that the performance rating that a part of the appraiser without specific data is different from that for the other evaluators.

(3) In addition, there is no other evidence to prove that the termination of each of the instant employment contracts constitutes a refusal to renew the employment contract without reasonable grounds.

D) Sub-determination

Therefore, since the labor contract relationship between the plaintiff and the above intervenors is deemed to be effective upon the expiration of the term of the labor contract, the part concerning the above intervenors among the decision of the retrial of this case, which was otherwise decided, is also unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted for all reasons and it is so decided as per Disposition.

Judges Lee Dong-gu (Presiding Judge)