(영문) 서울행정법원 2008.12.23.선고 2008구합20741 판결

The decision made by the National Labor Relations Commission on April 1, 2008 between the plaintiff and the defendant joining the defendant (hereinafter "the intervenor") on April 1, 2008 was revoked. The decision made by the National Labor Relations Commission on the application case for the reexamination of unfair dismissal shall be revoked.

Reasons

1. Details of the decision made by the retrial;

The following facts shall not be disputed between the parties, or may be recognized by taking into account the whole purport of the pleadings in each entry of Gap evidence 1, 2, 1 and 2:

A. The Plaintiff is a company that runs the financial business by setting up 11,00 full-time workers with its head office in Jung-gu Seoul Special Metropolitan City, XX X at a commercial-level. On May 13, 2002, the Intervenor is a person whose employment contract was terminated on March 31, 2007 (hereinafter referred to as “the termination of the instant contract”) after entering the Plaintiff’s bank as a contractual worker for one year of the contract term in May 13, 2002.

B. On June 13, 2007, the Intervenor and B (hereinafter referred to as the “ Intervenor, etc.”) filed an application for unfair dismissal with the Seoul Regional Labor Relations Commission (2007da715) by asserting that it is unfair for the Plaintiff bank to terminate the contract without renewal of his employment contract with the Intervenor, etc., and the said Regional Labor Relations Commission issued an order to remedy the Intervenor, etc. that the termination of the contract would be unfair for lack of reasonable grounds to refuse the renewal of the contract with the Intervenor, etc. on August 13, 2007.

C. Accordingly, on September 19, 2007, the Plaintiff bank dissatisfied with the judgment of the said Regional Labor Relations Commission, filed an application for reexamination with the Central Labor Relations Commission No. 2007da7666. On April 1, 2008, the National Labor Relations Commission accepted the part concerning B in the above application for reexamination and dismissed B’s application for unfair dismissal. Meanwhile, the part concerning the Intervenor against the Intervenor is identical to the initial trial court.

Section B. (hereinafter referred to as “instant decision on review”) dismissed the Intervenor’s decision on review.

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

A. The plaintiff's assertion

Since an employment contract with the Plaintiff bank and the Intervenor cannot be deemed as an mere form of the contract term, it naturally terminated due to the expiration of the contract term, and there is no reason to deem that the Intervenor has a reasonable expectation right for the re-contract after the expiration of the contract term. Even if the expectation right for the re-contract is acknowledged to the Intervenor, the termination of the contract in this case does not constitute an unfair dismissal, since there is a reasonable reason to refuse the renewal of the contract.

Therefore, the review decision of this case, which the National Labor Relations Commission reported differently, is unlawful.

(b) the relevant regulations;

[Guidelines for Contract Staff]

1. Objectives;

The purpose of this Chapter is to prescribe matters necessary for the employment and management of contract employees in principle and labor conditions.

of this section.

2. The definitions of terms;

contract officer means a fixed term of contract and a separate employment condition, unlike regular employees;

person employed by such person.

3. Classification of contract employees;

Contract workers shall be classified as follows according to the purpose of employment:

- Secretary-General: Exclusively responsible for specific tasks related to banking services, such as business performance areas, customer counseling stations, exclusive operators (monthly pay);

person employed for purposes

4. Employment standards;

[A] Employment of contract workers shall be in accordance with employment standards for each business headquarters or each competent department within the reasonable scope.

D. Decision.

[B] The appropriate size of contract workers shall be managed by the personnel management department based on the overall plan for the supply and demand of human resources of banks.

[C] A contracting employee must have the ability and conditions necessary for the performance of his/her duties, whose identity is reliable and who is in charge.

5. Employment procedures and methods;

[A] Contract employees shall be employed according to the following procedures and methods for each occupation.

- Professional televers exclusively in charge (monthly pay): The chief of the personnel department, upon consultation with the chief of the competent department, shall pay a job in charge, etc.

The contract shall be concluded after establishing the basic contract terms and obtaining the approval of the right holder.

[B] The right of full-time decision-making and parties to the employment of contract personnel are as follows.

7. Contract term;

A person shall be appointed.

In principle, the employment period of contract employees shall be one year, but if necessary, the employment period shall be separately determined by individual contracts.

may be deemed to have been made.

11. Division of termination of a contract;

The termination of a contract shall be classified into termination, termination, and disciplinary dismissal.

13. Forced termination

[A] When a contract employee falls under any of the following subparagraphs, he/she shall be subject to deferred termination:

- If the contract term expires

- At least 30 days of absence a year;

[B] 30 days before termination of the contract since the contract officer's work in charge is extinguished or there is no need to work due to other reasons

the contract may be terminated if the notice is given.

[C] In a case where other contractual personnel have been subject to disciplinary action heavier than reprimand, it is serious to the bank in violation of internal regulations

Where continuous work is deemed inappropriate, such as losses, the contract shall be entered into even during the contract period.

(2) may terminate the contract.

29. Purpose of rating;

For the contracting staff, the performance record shall be used for the renewal review, adjustment, etc. of employment contracts.

subsection (b) of this section.

30. The method of rating;

[A] The person whose employment period is at least three months, among contract employees currently in office as of the evaluation base date, shall be assessed on behalf of the person whose employment period is at least three months

shall be effected on the basis of the award.

[B] Where the annual evaluation result falls under a certain level below a certain level, the renewal of the contract may be denied.

32. Management of the results of rating;

[A] The results of the performance evaluation of contract employees shall be administered by the head of personnel affairs.

[B] Where the annual evaluation result falls under a certain level below a certain level, the renewal of the contract may be denied.

The following facts may be acknowledged in full view of each evidence mentioned above, Gap evidence 3, Gap evidence 5, Eul evidence 6, Eul evidence 9-1 through 4, Gap evidence 10-1, 2, Gap evidence 11 through 13, Gap evidence 16, 17, Gap evidence 18-1 through 8, Gap evidence 19, 21, Gap evidence 22, Gap evidence 23-1, 23-2, Gap evidence 25, Eul evidence 26-1 through 3, Eul evidence 27-1 through 4, Eul evidence 27-1 through 4, Eul evidence 2-1 through 4, and Eul evidence 1 to 13, Gap evidence 27-2, and the purport of the whole testimony of Lee Jin as a whole:

1) On May 13, 2002, the intervenor entered into an employment contract with the Plaintiff bank with an exclusive partner (emergency) with the following terms and conditions, and entered the Plaintiff bank.

- The contract period of Article 1 (Period of Contract) shall be from May 13, 2002 to May 12, 2003.

- Article 2 (Duties in Charge) “B” shall perform in good faith the affairs exclusively in charge of the counter designated by “A” as “A”.

Article 7 (Termination of Contract)

(1) "A" and "B" shall terminate this contract when it falls under any of the following subparagraphs:

(a) when the employment contract term expires;

(b) “B” has submitted the termination of the contract to “A” in this context;

(2) Other detailed matters shall be governed by the Guidelines for Contract Personnel of "A".

2) The intervenor, at the later time, concluded an employment contract with the Plaintiff bank and renewed the employment contract of the exclusive telecomer (emergency) with the first year exclusive telecomer (emergency system) to be terminated, once again, by the renewal of the employment contract. On March 31, 2005 when the second renewal period, the Plaintiff bank resigned from the Plaintiff bank, but on April 1 of the same year, again concluded an employment contract with the Plaintiff bank for one year (from April 1, 2005 to March 31, 2006) from the contract term of the Plaintiff bank, and renewed the employment contract for the first year from April 1, 2005 to March 31, 206, and then renewed the contract for the first year from April 1, 2006 to March 31, 207.

3) During the period from April 1, 2006 to March 31, 2007, the Plaintiff bank (affiliated point 000 point) received the case where the Plaintiff bank’s complaint against the Intervenor was received four times from the customer, due to the non-friendliness and service dissatisfaction against the Intervenor, and during the same period, the Plaintiff bank’s website received four times the case of consenting to the Intervenor.

4) On December 2006, the Plaintiff bank conducted a comprehensive evaluation of 2006 / counter competitors with the period subject to the assessment from June 1, 2006 to November 30, 2006. The Plaintiff bank's personnel management officer sent to each business owner for the 2006 exclusive / counter total evaluation, the specific evaluation items and evaluation criteria are 10% in total (10%) in work performance and field (10% in total), customer satisfaction level (10%) in 10% in total, (10%) in 10%) in 10% in 206, and (10%) in 10% in 20.

5) Meanwhile, in order to refer to the determination of whether to renew a contract with a participant on February 2, 2007, the Plaintiff bank collected opinions from the head of 000 branch office on the current status of operation of the exclusive telecomer separately from the evaluation of work performance, and the participant's attitude of work. The head of the branch office concerned, with respect to the participant's ability to maintain a contract only at the time of contract with the participant and the reason for replacement, replacement, or termination of the contract, "business performance ability or large customer marketing ability" is the principal's ability to perform duties, but there is a lot of consent from the single precomer from the customer due to the customer's friendship or inside the part of the long-term service, but the customer, other than the single precomer customer, has not received good points in the aspect of the non-sur assessment, and it has been caused by a long-term collapse due to the consumer's sound, so it is good that the customer's ability to give his opinion through changes in his work environment.

6) Accordingly, on March 2, 2007, the Plaintiff bank notified the Intervenor that the contract was terminated on the ground that the contract was not renewed on the ground of frequent customer bidding, and that the contract was terminated on the 31st day of the same month.

7) The termination rate of the contract for the Plaintiff Bank’s contractual employees is between 8% on January 53, 2005, 3% on May 34 of the same year, and 5% on December 11 of the same year from January 2005 to April 3% on December 2007.

D. Determination

1) Whether the contract term is merely a mere form

A) In determining the term of a labor contract, the employment relationship between the parties to the labor contract is naturally terminated without any separate measure such as dismissal of the employer upon the expiration of the term, except in extenuating circumstances. However, even in cases where a contract for a short-term contract is prepared, the fixed term of a contract is repeated over a long-term period, for example, the contents of the contract, such as the motive and circumstance leading up to the contract, the purpose of setting the term, the genuine intent of the parties to the contract, the practices regarding the conclusion of the same kind of contract, and the rules on the protection of workers, and where it is deemed that the fixed term of a contract is merely merely a form, the employer’s refusal to conclude the renewal contract without justifiable grounds is null and void as it is in light of the following circumstances (see Supreme Court Decision 2007Du1566, Oct. 11, 207).

B) As to the instant case, it is difficult to view that the contract period stipulated in the employment contract between the Plaintiff bank and the Intervenor is merely the form of the contract period stipulated in the employment contract between the Plaintiff bank and the Intervenor, in light of the following: (a) it is stipulated that the contract period will be terminated when the contract is a contract-exclusive telegrapher and the contract period expires; and (b) the contract-based employee is subject to the contract-based guidelines, unlike regular employees; and (c) Article 13 of the contract-based guidelines provides that the contract-based employee shall be terminated upon the expiration of the contract period. Therefore, the Plaintiff’s assertion on this point is with merit.

2) Whether there is a legitimate expectation for the conclusion of a re-contract

A) In the case of an employee appointed for a fixed term of contract, if the term of the contract is not only the form of the contract, his status as an employee shall be terminated as a matter of course, and if the contract for employment is not concluded, his status as an employee shall be terminated as a matter of course, and even if the contract for employment is not concluded, he shall be dismissed as a matter of principle without going through special procedures, such as decision on refusal of reappointment. However, in the case where the provisions of Acts and subordinate statutes or the contract, etc. which provide for the basis for the appointment, stipulate the duty of re-appointing the employee whose term of appointment expires, or where the right of legitimate expectation is acknowledged as an employee to be reappointed in accordance with the prescribed procedure, the employer’s exclusion of the employee unfairly from the reappointment in violation of the procedure shall be null and void (see the above Decision 2

B) In this case, as seen earlier, Article 29 of the Guidelines for Contract Personnel stipulates that the performance evaluation for contract workers shall be conducted in order to utilize it for the review of renewal, adjustment of remuneration, etc. of employment contracts with respect to contract workers. Article 32(b) provides that where the annual evaluation result falls under a certain level of lower grade, the renewal of the contract may be denied in the event that the annual evaluation result falls under a certain level of lower grade, and thus, it appears that the renewal of the contract would be capable unless the performance evaluation for contract employees whose contract term expires fall under a certain level of lower grade, and the Plaintiff bank annually conducts an evaluation of work performance for

In light of the fact that most contract-based employees have renewed a labor contract with them, it is reasonable to view that the intervenor has a legitimate expectation right to conclude a contract when he/she obtains excellent points in work performance rating, and that the intervenor has a legitimate expectation right to conclude a contract when he/she obtains excellent points in work performance rating. Thus, the plaintiff's assertion on the opposite premise is without merit.

3) Whether there are reasonable grounds for refusing to conclude a contract for re-contract

As seen earlier, if the intervenor's right to expect renewal of a contract is recognized as legitimate, the bank must have a reasonable ground to refuse the renewal of contract with the intervenor. In this case, the plaintiff has received complaints from the participant within the service period from April 1, 2006 to March 31, 2007, four times from the participant's customers inside the service period from March 31, 2007. However, in particular, the plaintiff bank did not have internal provisions allowing the participant to refuse renewal of contract immediately on the ground that the plaintiff bank received satisfactory cases from the customer from the customer during the contract period, and it did not have a reasonable ground to allow the participant to refuse renewal of contract immediately on the ground that the participant did not have the right to request from the participant for the same period. In light of the fact that the plaintiff bank received the second excellent class 4 from work performance rating in the second half of 2006 and the defendant's ability to request renewal of contract from the participant during the service performance period of 20 years and the defendant's ability to request renewal of contract from the participant's.

4) Accordingly, the termination of the instant contract is unlawful, and the same purport is lawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is decided as per Disposition.

Judges

Judges in fixed form of judge

Judges Park Jong-ho

Judgment Notarial Award

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