[1] In a case where specific discriminatory acts against fixed-term workers were committed after the enforcement of the provision on the prohibition of discrimination under the Act on the Protection, etc. of Fixed-Term and Part-Time Workers, whether the provision on the prohibition of discrimination is applied even if the establishment of employment rules, collective agreement, labor contract or provision of labor was made before the enforcement of the above provision

[2] Where the Korea Railroad Corporation grants performance bonus according to the evaluation of business performance in the previous year after the enforcement date of the provision on prohibition of discrimination under the Act on the Protection, etc. of Fixed-Term and Part-Time Workers, and excludes fixed-term workers Gap, the case holding that the judgment below erred by misapprehending the legal principles as to the application of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers

[1] Where specific discriminatory acts, such as the payment of wages or the enforcement of working conditions with respect to fixed-term workers, were committed after the enforcement of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (hereinafter “fixed-term Act”), in principle, the prohibition of discrimination shall apply even if such specific discriminatory acts were conducted before the enforcement of the provision on the prohibition of discrimination. However, since the employer’s legitimate and significant trust in the legal relationship already formed before the enforcement of the provision on the prohibition of discrimination, there is only room to limit the application from the perspective of trust protection and legal stability, only in exceptional cases where the employer’s withdrawal, modification, or evasion cannot be expected, even if the result according to the legal relationship already formed before the enforcement of the provision on the prohibition of discrimination is deemed a discriminatory treatment after the enforcement of the above provision.

[2] Where the Korea Railroad Corporation paid performance bonuses to Gap et al. on July 31, 2007 after the enforcement date of the provision on prohibition of discrimination (hereinafter "fixed-term and Part-Time Workers Act") on the "Act on the Protection, etc. of Fixed-Term and Part-Time Workers" (hereinafter "fixed-term Act"), the case held that the court below erred in the misapprehension of legal principles as to whether the payment of performance bonuses was made on July 20, 2007 and the scope of payment of performance bonuses, such as determination of internal evaluation on July 20, 2007, even if performance bonuses were based on the evaluation of business performance in 2006 and the payment of performance bonuses was excluded from the payment of performance bonuses, as long as it was possible for Gap et al. to receive performance bonuses, or there were no other unavoidable reasons to exclude the payment of performance bonuses under the Act on the Protection, etc. of Specific-Term and Part-Time Workers from the payment of performance bonuses.

[1] Article 2 subparag. 3, Article 8(1) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers; Article 8(1)2 of the Addenda ( December 21, 2006) / [2] Article 2 subparag. 3, Article 8(1) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers; Article 8(1)2 of the Addenda ( December 21, 2006)

Korea Railroad Corporation (Law Firm LLC, Attorneys Hong Sung-hoon et al., Counsel for the defendant-appellant)

The Chairman of the National Labor Relations Commission

Defendant 1 and 31 others (Attorney Kim J-jin, Counsel for the defendant-appellant)

Seoul High Court Decision 2008Nu33923 decided July 9, 2009

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

Article 2 Subparag. 3 of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (hereinafter “ Fixed-Term Act”) defines “discriminatory treatment” as “unfavorable treatment in terms of wages and other working conditions, etc.” under Article 8(1) of the Act provides that a user shall not discriminate against a worker who has entered into an employment contract for the same or similar kind of work in the relevant business or workplace on the ground that he/she is a fixed-term worker, on the ground that he/she is the fixed-term worker. Articles 9 through 15 provide for procedures for rectifying discriminatory treatment, etc. under Articles 9 through 15, and Article 2(1) of the Addenda provides that the enforcement date of the aforementioned provision on the prohibition of discrimination shall be phased from July 1, 2007 to July 1, 2009 for each business or workplace.

In this context, where specific discriminatory acts, such as the payment of wages or the enforcement of working conditions, which are disadvantageous to fixed-term workers, have been committed after the enforcement of the provisions on the prohibition of discrimination under the Fixed-term Employment Act, in principle, the aforementioned provisions on the prohibition of discrimination shall be applied even if the establishment of employment rules, the conclusion of collective agreements or labor contracts, or the provision of labor, which serve as the basis of such specific discriminatory acts, have been conducted before the enforcement of the above provisions on the prohibition of discrimination. However, there is room to limit the application of the provisions on the prohibition of discrimination from the perspective of trust protection and legal stability only in exceptional cases where the employer’s legitimate and significant trust in the legal relations already formed before the enforcement of the provisions on the prohibition of discrimination under the Fixed-Term Employment Act,

According to the reasoning of the judgment of the court of first instance cited by the court below, the Government introduced the performance bonus payment system to public institutions according to the evaluation of the business performance of the previous year. The Minister of Planning and Budget (amended by Act No. 8852, Feb. 9, 2008) determines order by evaluating the business performance, etc. of each public institution each year, and accordingly approves and notifies the payment rate of performance bonus to the employees of each public institution. Each public institution provided differential payment rate of performance bonus to its employees within the total amount notified. The plaintiff provided that performance bonus shall be paid according to the payment criteria separately determined by the president based on the government's management evaluation and internal evaluation of the plaintiff's performance bonus in relation to the payment of performance bonus. On the other hand, the plaintiff prepared an internal evaluation method and criteria for performance bonus for the payment of performance bonus in the year 2006 and notified the plaintiff of the payment rate of performance bonus within the period of 70 days from July 207 to 207, 2006.

According to the above facts, the specific contents of the performance bonus to be paid to workers can be deemed to have been determined by the plaintiff's internal evaluation and the payment criteria separately determined by the president in addition to the notice of payment rate of the Ministry of Planning and Budget. However, even if the performance bonus in this case was based on the evaluation of management performance in July 20, 2007, which can be seen as falling under the above payment criteria upon the preparation of July 23, 2007, it can be deemed that the specific contents such as whether to pay performance bonus in this case and the scope of payment have been determined after July 2007, and further, it can be deemed that there was a specific discriminatory act that excludes the participants who are fixed-term workers from the payment object of the performance bonus in this case by excluding them from the payment object of the performance bonus in this case, even if the performance bonus in this case was based on the evaluation of management performance in 206, it cannot be deemed that there was a specific legal relationship yet formed before the prohibition of discrimination in the Act was implemented.

Nevertheless, the court below held that the above prohibition provision does not apply to the non-payment of the non-payment of the performance bonus of this case solely on the ground that the performance bonus of this case was paid from January 1, 2006 to December 31, 2006 according to the evaluation of management performance for work performance. The court below erred by misapprehending the legal principles on the subject of application of the fixed-term contract law, which affected the conclusion of the judgment. The ground of appeal assigning this error has merit.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Nung-hwan (Presiding Justice)