2013Guhap29551 Revocation of the Appeal Tribunal on Unfair Dismissal

A school foundation, the JID.

Does in both documents of Gyeonggi-gu;

Representatives of the President of the Republic of Korea

Law Firm Future, Attorney Park Young-chul

[Defendant-Appellant]

The Chairman of the National Labor Relations Commission

Litigation Performers Kim Jong-soo

○ ○

Seoul Mapo-gu Mapo-ro 19

April 17, 2014

May 15, 2014

1. The plaintiff's claim is dismissed.

2. The costs of the lawsuit, including the part resulting from the participation, are assessed against the Plaintiff.

The Central Labor Relations Commission on October 18, 2013, between the Plaintiff and the Defendant’s Intervenor, shall be subject to unfair dismissal.

The decision made by a retrial on a petition case for remedy shall be revoked.

1. Details of the decision on retrial;

A. The plaintiff is a school foundation that establishes and operates Yangyang High School (hereinafter referred to as the "school of this case") with 98 full-time workers, and the defendant joining the defendant (hereinafter referred to as the " participant") is an employee employed by the plaintiff as an instructor of the school of this case.

B. On November 16, 2012, the principal of the instant case sent a notice to the intervenors on March 16, 2013 that they would terminate the contract and would not conclude the renewal contract (hereinafter “instant notice”).

C. On April 18, 2013, the Intervenor asserted that the instant notification constituted unfair dismissal, and filed an application for unfair dismissal with the Gyeonggi Regional Labor Relations Commission. On July 2, 2013, the Gyeonggi Regional Labor Relations Commission received the Intervenor’s application for remedy on the ground that the Plaintiff’s notification of termination of the labor contract to the Intervenor converted into an employee who entered into an employment contract with no fixed period of time was unfair dismissal.

D. On August 1, 2013, the Plaintiff dissatisfied with the above initial inquiry court, filed an application for reexamination with the National Labor Relations Commission. On October 18, 2013, the National Labor Relations Commission dismissed the said application for reexamination on the same grounds as the above initial inquiry court (hereinafter “instant initial inquiry court”).

[Ground of recognition] Unsatisfy, Gap evidence 1-1 and 2-2, and the purport of the whole pleadings

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

A. On March 16, 2012, the Plaintiff agreed to employ the Intervenor as a part-time lecturer after he/she worked as a part-time lecturer for two years, and then concluded a renewal contract with the Intervenor on March 16, 2012, the Plaintiff agreed to employ the Intervenor as a part-time lecturer, who is a part-time lecturer for more than two years pursuant to Article 4(1)6 of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (hereinafter “ Fixed-Term Act”), Article 3(3)1 of the Enforcement Decree of the Fixed-Term Act, Article 22 of the Elementary and Secondary Education Act, and Article 42(1) and (5) of the Enforcement Decree of the Elementary and Secondary Education Act. Thus, even if the Intervenor exceeded two years, the Intervenor’s employment contract between the Plaintiff and the Intervenor is terminated on March 16, 2013, and thus, it does not constitute an ordinary teacher’s qualification certificate as an instructor who is not a part-time lecturer for more than two years.

3) On March 16, 2012, when concluding a re-contract with the Plaintiff on March 16, 2012, the Intervenor asserted that the re-contract falls under a professional English instructor who can be employed in excess of two years, and is not converted into an inorganic contract worker pursuant to Article 4(2) of the Fixed-term Contract Act even if concluding a re-contract, and the Plaintiff concluded a re-contract with the Intervenor’s belief that the Intervenor’s above assertion is not converted into an inorganic contract worker. Therefore, it is against the principle of good faith to reverse the argument and claim

4) Even if the Intervenor was converted to an employee who entered into a non-fixed-term employment contract pursuant to Article 4(2) of the Fixed-term Employment Act, the Intervenor’s dissatisfactions against the Intervenor’s class and the Plaintiff’s civil petition was filed, and the Intervenor’s daily English course taken charge of the instant school was closed.

Since an intervenor who does not have a teacher qualification certificate was unable to receive regular classes, there is a justifiable reason that the plaintiff dismissed the intervenor.

B. Relevant statutes

As shown in the attached Form.

(c) Fact of recognition;

1) On February 22, 2010, the Plaintiff announced the invitation of English language teachers (at least two years of qualification: a bachelor’s degree holder who has received regular education in the English language language, a person who has completed or has been exempted from military service in the case of a male, a person who has not completed or has been exempted from military service in the case of a male), and on March 16, 2010, an instructor employment contract between the intervenor and the intervenor to employ the intervenor as an English language instructor (hereinafter referred to as “the first contract”) (the contract shall be drawn up by 1-1 of the guidelines for the operation of teaching staff in the elementary and secondary schools prepared by the Gyeonggi-do Office of Education, referring to the form of one contract teacher). The main contents are as follows:

(1) A person in charge: A person in charge of English language lessons, a person in charge of regular subjects, special skills, aptitude, etc. other than regular classes, and a subordinate and the same shall serve in the English language language or lectures for 20 hours respectively, and a person in charge of other duties instructed by the principal of this case.

(2) Contract period: From March 17, 2010 to March 16, 2011.

(4) Working hours: A regular teacher shall apply mutatis mutandis to his/her commuting hours and working hours, but the head of a school of this case may adjust them.

2) From around 2003, the Plaintiff employed an instructor himself, provided English language education to the students, and received education expenses separately from his parents, and the Intervenor was employed in accordance with the Plaintiff’s aforementioned system. Therefore, the Intervenor did not report the Intervenor to the Office of Education as an English language instructor under Article 22 of the Elementary and Secondary Education Act and Article 42(1) of the Enforcement Decree of the Elementary and Secondary Education Act, and did not receive allowances from the Office of Education for the Intervenor.

3) According to the first agreement, the intervenor completed a course of “living English” among the subjects of the instant school from March 17, 2010 to the students, leading to the course of “living English”.

4) On the other hand, on September 29, 2010, the Plaintiff entered into an employment contract with the office of education for the employment of the English language professional instructor of the English language system of the Gyeonggi-do Office of Education (the contract is written according to the English language professional instructor appointment contract form of the English language professional instructor written by the Gyeonggi-do Office of Education), and the main contents are as follows.

(1) Affairs in charge: Research and development affairs related to regular English classes and English education, affairs related to educational and training activities in relation to English education after the end of regular learning hours or during the vacation period, affairs in charge of and support for English English assistant, affairs related to English English assistant, affairs related to English (experience) class exclusively for English, affairs related to the management of English language, and other affairs assigned by the principal

(2) Contract period: From October 1, 2010 to August 31, 2011.

(4) Working hours: The plaintiff deemed the office of education to be a professional English instructor at the English conference, and received an allowance from the office of education for the office of education on the five-day daily basis.

6) On March 16, 2011, the Plaintiff entered into a contract with the Intervenor during the contract period from March 17, 2011 to March 16, 2012, and the remainder was the same as the first contract (hereinafter “second contract”). Moreover, as at the time of the conclusion of the first contract, the Plaintiff did not report the Intervenor to the Office of Education as an English language professional instructor, and the Plaintiff paid the Intervenor’s remuneration separately from his parents, as in the previous contract, as in the case of the first contract, paid the Plaintiff’s daily life English to the students who are in charge of a “living English lecture” as from March 17, 2011.

7) On December 28, 2011, the Plaintiff sent a notice to the Intervenor on December 28, 201, stating that he/she would be transferred to an inorganic contract worker pursuant to Article 4(2) of the Fixed-term Act when the Intervenor works for more than two years. However, on December 28, 2012, the Plaintiff sent a notice to the Intervenor that he/she would terminate the second contract term and will not conclude the renewal contract. However, on December 28, 2011, the Plaintiff reversed the notification of the Intervenor on March 28, 201, and paid the Intervenor the contract term with the Intervenor from March 17, 2012 to March 16, 2013 (hereinafter referred to as “three-party contract terms”). Moreover, the Plaintiff entered into a training agreement with his/her parents from the English Office of Education as well as the first three-party contract terms and conditions with his/her former students as the first three-party contract terms and conditions.

9) On November 12, 2012, the Plaintiff: (a) held a meeting of the English Department of English in order to adjust the number of English language hours; (b) abolished the business of operating daily English education operated at the beneficiary’s expense; and (c) decided to recommend it to the School Governance Committee; (c) on November 16, 2012, the Plaintiff issued a notice of the expiration of the term of the contract to the Intervenor on March 16, 2012, stating that “the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○’s recruitment.

12 ) 한편 2012년도 이 사건 학교의 예산액은 9, 057, 472, 000원, 세입결산액은 8, 764, 679, 572원, 세출결산액은 8, 714, 520, 340원, 세계잉여금 ( 歲計剩餘金 ) 은 50, 159, 232원 ( = 세입 결산액 8, 764, 679, 572원 - 세출결산액 8, 714, 520, 340원 ) 이다 .

[Ground of recognition] Facts without dispute, Gap evidence 2 through 5, Gap evidence 10, Eul evidence 1 through 11, Eul evidence 14, Eul 18, 19, Eul evidence 21 through 26 (including the number of branches), and the purport of the whole pleadings

D. Determination

1) Whether Article 4(2) of the Fixed-term Education Act applies to a specialized English instructor as provided in Article 22 of the Elementary and Secondary Education Act and Article 42(1) of the Enforcement Decree of the Elementary and Secondary Education Act.

Article 22 of the Elementary and Secondary Education Act provides that schools may have industrial-educational teachers, instructors, etc. in addition to regular teachers to take charge of educating students, and that schools shall provide for matters necessary for the kinds, qualifications, appointment, etc. of industrial-educational teachers, etc. established in the schools. Article 42(1) of the Enforcement Decree of the Elementary and Secondary Education Act provides for industrial-educational teachers, honorary teachers, English language lecturers, instructors, and instructors as the types of teachers, etc., which are industrial-educational teachers, honorary teachers, English language lecturers, and Article 42(5) of the Enforcement Decree of the Elementary and Secondary Education Act provides for the period of appointment of specialized English language instructors under paragraph (1) of the same Article, and where necessary, the period of continuous employment may be extended by up to four years.

Meanwhile, pursuant to Article 4(1)6 of the Fixed-term Workers Act and Article 3(3)1 of the Enforcement Decree of the Fixed-Term Workers Act, an employer may hire a fixed-term worker for a period not exceeding two years (where a fixed-term employment contract is renewed repeatedly, the total period of continuous employment shall not exceed two years). However, other statutes prescribe the period of employment of a fixed-term worker differently from Article 4(1) of the Fixed-term Workers Act, or allow a fixed-term worker to enter into an employment contract for a separate period, exceeding two years. According to Article 4(2) of the Fixed-term Workers Act, where an employer employs a fixed-term worker for more than two years, the fixed-term worker shall be deemed an employee who entered into an employment contract without a fixed-term employment contract.

In light of the contents of these provisions, in cases where an intervenor is a professional English instructor prescribed in Article 22 of the Elementary and Secondary Education Act and Article 42(1) of the Enforcement Decree of the Elementary and Secondary Education Act, even if he/she works for more than two years, he/she shall not be converted to an employee who entered into an employment contract without a fixed period of time. 2) Whether an intervenor is a professional English instructor.

Considering the above facts, the evidence and the purport of the argument as seen earlier, it is reasonable to view that the Plaintiff employed the Intervenor as an English instructor under Article 22 of the Elementary and Secondary Education Act, and Article 42(1) of the Enforcement Decree of the Elementary and Secondary Education Act, not an English instructor, and the Intervenor as an English instructor under the above provision, as in the third contract. (A) In concluding the first and second contracts, the Plaintiff did not indicate that the Intervenor was employed as an English instructor under Article 22 of the Elementary and Secondary Education Act and Article 42(1) of the Enforcement Decree of the Elementary and Secondary Education Act, not an English instructor under the first and second contracts, and the Plaintiff did not appear to have concluded the first and second contracts with the District Office of Education to have concluded the first and second contracts with the District Office of Education to have concluded the first and second contracts with the Plaintiff as an English instructor under the English Specialized Education Act. However, the Plaintiff did not have any difference between the Plaintiff’s qualifications as an English instructor under the first and second contracts with the District Office of Education.

B) The Plaintiff asserted that at the time of concluding the third contract, the Plaintiff was seeking to employ the Intervenor as a professional English instructor who does not convert the Intervenor into an inorganic employee. However, the Plaintiff cannot be deemed to have included the foregoing motive in the terms of the contract because it did not prepare a separate contract while entering into the third contract, and rather, the Plaintiff maintained the remuneration amount stipulated in the first and second contracts while entering into the third contract. In light of the fact that the Intervenor did not change the details of the Intervenor’s business, the Plaintiff is bound to have entered into the third contract with the same content as the previous contract.

C) In addition, the Plaintiff did not report the Intervenor as a professional English instructor to the Office of Education, as at the time of concluding the third contract, as at the time of concluding the first and second contracts, and did not receive any remuneration from the Office of Education and paid the Intervenor separately from his parents, as in the previous case.

D) After entering into the third contract, the Plaintiff’s new notice of recruitment of a specialized English instructor or the invitation of the Intervenor to comply with the above notice seems to be an act premised on the premise that the Plaintiff did not recognize the Intervenor as a specialized English instructor.

3) Whether the intervenor is converted to an inorganic contract worker

Article 22 of the Elementary and Secondary Education Act and Article 42 of the Enforcement Decree of the Elementary and Secondary Education Act provide that schools may have industrial-educational teachers, honorary teachers, instructors specialized in English language, and instructors in addition to regular teachers, and among them, the period of appointment shall not exceed one year, but may be extended by up to four consecutive years, if necessary. (Article 42(5) of the Enforcement Decree of the Elementary and Secondary Education Act provides that industrial-educational teachers, honorary teachers, instructors, and instructors shall be appointed on a fixed-term basis, or the term of appointment shall be restricted to a certain extent.

In light of the contents of these provisions, it is reasonable to view that an instructor prescribed in Article 22 of the Elementary and Secondary Education Act and Article 42 of the Enforcement Decree of the Elementary and Secondary Education Act shall be converted to an employee who entered into an employment contract without a fixed period of time pursuant to Article 4(2) of the Fixed-term Employment Act, if the instructor worked for more

Therefore, an intervenor who is an instructor under Article 22 of the Elementary and Secondary Education Act and Article 42 of the Enforcement Decree of the Elementary and Secondary Education Act has been employed for more than two years in the school of this case by concluding the third contract.

4) At the time of concluding the third contract, the Plaintiff asserts that the Intervenor’s assertion on the conversion of the arms contract into the arms contract does not violate the principle of good faith, and that the Intervenor is not converted into an inorganic contract worker even if the Intervenor works for the principal of the school and the chief of the administrative office of the school of this case for more than two years as an English professional instructor. The Plaintiff asserted that the Intervenor signed the third contract with the belief of the Intervenor’s assertion and the third contract.

However, the following circumstances revealed from the facts recognized as above, the evidence and the purport of the entire arguments, i.e., (i) the Plaintiff concluded a three-dimensional contract, and did not clearly state that the Intervenor is employed as an English professional instructor through the preparation of the contract; (ii) the Plaintiff did not take measures to report the Intervenor to the Office of Education as an English professional instructor or receive the Intervenor’s remuneration from the Office of Education; and (iii) the Plaintiff concluded a labor contract with the content that the Intervenor was employed as an English professional instructor before the date of signing the three-dimensional contract, and that the Plaintiff believed the Intervenor’s assertion that the Plaintiff was not well aware of the English specialized instructor system, and (iv) the Intervenor did not easily understand the conclusion of the contract with the Plaintiff, and even if the Intervenor was notified of the expiration of the contract by the Plaintiff, it did not change the previous notification to the head of the Office of Administration of the instant school, and the Plaintiff did not yet enter into the two-month contract with the head of the relevant office of education and the head of the relevant office at the instant school.

(5) In light of the fact that the credibility of the above evidence No. 7-1 to No. 7-3, and the witness most effective testimony made as a witness of the school of this case as an employee of the administrative office of this case, the credibility of the above evidence No. 7-1 to No. 3, and the witness most effective testimony in light of the relation with the plaintiff is doubtful, etc., the plaintiff's testimony that corresponds to the above facts, is difficult to believe, and there is no other evidence to prove otherwise.

Therefore, the plaintiff's above assertion is without merit without further review as to the remaining points. 5) Whether the notice of this case is legitimate

As seen earlier, the Intervenor constitutes a worker who entered into an employment contract without a fixed period of time, and as such, the Plaintiff unilaterally notified the instant case and terminated the employment contract, this is a substantial dismissal.

Article 27 of the Labor Standards Act provides that an employer shall notify the grounds for and timing of the dismissal in writing to the extent that the employer intends to dismiss a worker (Paragraph 1), and that the dismissal shall have the effect of written notification (Paragraph 2). The above provision provides that the employer shall decide the dismissal more carefully by providing written notification of the grounds for dismissal and the timing of the dismissal. In addition, the above provision provides that the worker notified of the grounds for dismissal is a mandatory provision to protect the rights and interests of the worker ultimately by guaranteeing the worker’s right of defense by clearly knowing disputes surrounding the dismissal, such as the existence of dismissal and the grounds for dismissal. The reasons for the dismissal requiring the notification are specific to the extent that the worker can be aware of what the reasons for the dismissal are. However, as seen earlier, without presenting any reasons for dismissal to the intervenor, the Plaintiff merely failed to provide the intervenor with a written notification of the expiration of the contract term ○○○○○○○○○ (hereinafter referred to as “living instructor”) on March 16, 2013, and thus, is unlawful.

In addition, the plaintiff asserts that there exists grounds for disciplinary action, such as the plaintiff's filing of a student's complaint against the intervenor's class. However, in light of the evidence Nos. 5-1, 2, and 9, there is no other evidence to acknowledge the above assertion, and there is no other evidence to acknowledge it otherwise. Even if the notice of this case is appointed for managerial reasons as prescribed in Article 24 of the Labor Standards Act, the plaintiff publicly announced the appointment of a professional English instructor who performs duties similar to the intervenor's duties as long as the time has yet to elapse after the notice of this case, and the intervenor's remuneration seems to be less than 2,30,000 won in the whole budget of the plaintiff, there is no urgent administrative need to dismiss the intervenor, and there is no evidence to acknowledge that the plaintiff made efforts to avoid the dismissal of the intervenor. Thus, there is no justifiable ground to dismiss the intervenor.

Therefore, the ruling of the retrial of this case, which forms the conclusion, is legitimate.

3. Conclusion

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

Judges anti-competence

Judges Kim Yong-ho

Judges Kim Jong-hwan

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.