If the employer’s unfair dismissal is invalidated or cancelled, the wages that the employee may claim.

When an employer's unfair dismissal disposition is null and void or cancelled, the status as an employee who intends to be damaged has continued to exist, and since a worker's failure to provide labor between him/her is due to a cause attributable to the employer, he/she may claim payment of the total amount of wages that he/she may receive in cases where he/she has continuously worked under Article 538 (1) of the Civil Act

Article 538(1) of the Civil Act, Article 38 of the Labor Standards Act

Plaintiff

Attorney Go-hee et al., Counsel for the defendant-appellant

Seoul High Court Decision 80Na3428 delivered on February 9, 1981

The appeal is dismissed.

The costs of appeal shall be borne by the defendant.

The defendant's attorney's grounds of appeal are examined.

When an employer’s unfair dismissal disposition is null and void or cancelled, the status as an employee who intends to be damaged has been continued, and the employee’s failure to provide labor is attributable to the cause attributable to the employer, and thus an employee may claim full payment of wages which may have been paid in cases where the employee continued to work pursuant to Article 538(1) of the Civil Act. The provisions of Article 38 of the Labor Standards Act, which points out the lawsuit, stipulate that the employer has the obligation to pay at least 60 percent of average wages for the welfare of the employee during the period of suspension of business due to the cause attributable to the employer, and do not exclude the application of Article 538(1) of the Civil Act. Thus, even in this case where the employer seeks the performance of wage payment due to the cause attributable to the employer, it cannot be interpreted as sufficient for the employer to pay only 60 percent of average wages. In this regard, the Plaintiff’s assertion that the Plaintiff would have been entitled to receive the full amount of wages due to the Defendant’s continuous payment of wages should not be accepted from the Plaintiff’s assertion to the lower court.

Therefore, the appeal is dismissed, and the costs of the appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Jong-young (Presiding Justice)