The method of calculating retirement allowances of those who have been employed as daily employed workers and have been employed as regular employees thereafter.

The retirement allowance of a person who has served as a daily employed worker initially and has served continuously until he retires after being appointed as a regular member shall be calculated by applying the average wage as a regular member and the retirement allowance payment rate to the total sum of the entire period.

Article 28(1) of the Labor Standards Act

【Court Decision 76Da1812 decided September 14, 1976 (Article 28(15) of the Labor Standards Act, No. 599, No. 546, 9352)

Plaintiff

Korea General Chemical Corporation

Gwangju District Court (78Gahap351)

Supreme Court Decision 81Meu137 Decided April 13, 1982

Of the part concerning retirement allowances in the original judgment, the part against the defendant ordering payment in excess of the amount equivalent to five percent per annum from February 8, 1979 to the full payment, shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed.

The defendant's remaining appeal is dismissed.

The total litigation costs (related to retirement allowances) shall be four equal parts, and one of them shall be borne by the plaintiff, and the remainder by the defendant.

The defendant shall pay to the plaintiff the amount of 4,915,698 won with retirement allowance and the amount equivalent to 5% per annum from the day following the day when a copy of the complaint in this case was served on the defendant to the day when a copy of the complaint in this case was delivered to the defendant, and the declaration of provisional execution (the portion of the plaintiff's loss against the plaintiff as to the remaining claim and retirement allowance excluding retirement allowances

In the judgment of the court below, the part against the defendant is revoked, and the plaintiff's claim against the revocation is dismissed.

From January 4, 1963 to May 31, 1964, the Plaintiff is a daily employed worker of the Defendant Company, from June 1, 1964 to May 1, 1964, and from May 2, 1978, the Defendant Company has retired after an employee has continuously worked for not less than one year (Article 24 of the same provision). In the calculation of the number of months of continuous service, the fraction less than one year shall be calculated by dividing it into one month (Article 25 of the same provision), the amount of less than ten months shall be calculated as one month (Article 25 of the same provision), the amount of average wages for ten consecutive years of service shall be added to four months of average wages for four consecutive years of service (attached Table 6 of the same provision), and there is no dispute between the parties concerned (attached Table 6).

If so, the plaintiff continued to work for the defendant company for 15 years from January 4, 1963 to May 2, 1978 as seen above. Thus, according to the retirement allowance payment rate of the defendant company, the amount equivalent to the average wage for 45,33 months (24 months + 10 years for the continuous 10 years + 4/12) every five years and four months exceeding 10 years x 4 months (5 months x 4/12), 4-21.33 months, and 4 months for the small number of employees, the small number of employees shall be liable to pay as retirement pay.

The defendant asserts that the defendant company's retirement pay rate is less than that of the regular worker separately for the daily worker. Thus, one year and four months from January 4, 1963 to May 31, 1964 that the plaintiff's daily worker continued to work as a regular worker cannot be paid a retirement allowance according to the retirement payment rate for the regular worker. However, as seen above, the plaintiff was appointed from January 4, 1963 to May 31, 1964 and continued to work as a regular worker until he retires on May 2, 1978, the whole period shall be deemed to be the service period which serves as the basis for the calculation of the retirement allowance, and since it differs from the period of service as a daily worker and the period of service as a regular worker, it shall not be deemed that there is no reason for the defendant's retirement allowance payment rate as the average wage for the above regular period.

Furthermore, regarding the amount of retirement allowances that the defendant company should pay to the plaintiff, it shall be viewed as the amount of retirement allowances.

Article 19(1) of the Labor Standards Act provides that "average wages, which are the basis for calculation of retirement allowances, shall be 16,230 won per day and shall be 493,393 won, and that "total amount of retirement allowances calculated for 45,333 months, which shall be the basis for calculation of retirement allowances, shall be 22,365,504 won." Thus, under Article 19(1) of the Labor Standards Act, "average wages" refer to the amount calculated by dividing the total amount of wages paid to the relevant worker during the three-month period prior to the date on which the ground for calculation of retirement allowances arises, by the total number of days during the pertinent period, or subparagraph 5 (Guidelines for Operation and Allowances) provides that "the average wages, wages, and monthly allowances, which are the basis for calculation of retirement allowances, shall be calculated separately for 2 months prior to the date of retirement allowances, based on the average wages, average wages, and monthly allowances, which shall be calculated based on the average wages and annual allowances, which shall be calculated separately by 13/1000 days per year.

First, according to the retirement allowance rules (Evidence B) of the defendant company in force at the time of retirement of the plaintiff, only the amount of continuous service among the remuneration that the plaintiff received shall be included in the average wage for three months before his retirement, which serves as the basis for calculating the retirement allowance, and the fact that the plaintiff received for three months before his retirement, including the ordinary wage, various allowances, monthly allowances, meal expenses, and annual continuous service allowance for three months before his retirement, is without dispute between the parties concerned. With respect to the annual bonus to be included in the following average wage, the defendant company paid the amount equivalent to 250 percent of the monthly ordinary wage for 1977 and the overall period of 1978 as bonus allowance, and the plaintiff's ordinary wage for 177,300 won for 1977 and 218,800 won for 29 years before and after his retirement, there is no dispute between the parties concerned, and the defendant company did not have an obligation to pay the amount equivalent to 250 percent of the monthly ordinary wage for 3 years after his retirement.

More than above, when calculating the average wage which serves as the basis for calculating the plaintiff's retirement allowance in accordance with this part, (6,40 won, 169,863 won, meal expenses, 37,500 won, monthly salary, 48,507 won, + 329,108 won, 143,271 won, 89-14,546 won, and 89-14,546 won, monthly salary for three months prior to the date of retirement (14,546 won x 30.40 days from February 3, 1982 to May 2, 198) + (37,500 won, monthly salary for 47,500 won, monthly salary for 48,500 won, 143,546 won, and 130.4 days from February 3, 1982 x 3614,2614) of the plaintiff's retirement allowance calculated as follows.

Thus, the defendant is obligated to pay to the plaintiff the remaining 20,046,161 won after deducting 17,449,806 won which the plaintiff had already received from the defendant as part of the retirement allowance, and damages for delay according to the rate of 5% per annum of the Civil Code from February 8, 1979 to the full payment date, on the record that the copy of the complaint in this case is the next day from the date when the copy of the complaint in this case was served to the defendant.

Therefore, the plaintiff's claim for retirement allowance of this case shall be accepted within the above scope of recognition, and the remainder shall be dismissed because it is unfair. Since the original judgment has partially unfair and reasonable grounds for appeal against this part, the defendant's claim for retirement allowance of this case shall be revoked by the original judgment pursuant to Article 386 of the Civil Procedure Act, and the defendant's remaining appeal shall be dismissed as well as the defendant's remaining appeal shall be dismissed as reasonable, and it shall be decided as per Disposition by the application of Articles 96, 95, 89, and 92 of the Civil Procedure Act with respect to the burden of litigation costs (related to retirement allowances).

Judges’ interference with deliberation (Presiding Judge) will maximum