Plaintiff (Law Firm Han, Attorneys Jin-dae et al., Counsel for plaintiff-appellant)

The Chairman of the National Labor Relations Commission

Defendant 1 and 2 others (Law Firm East Sea, Attorney Choi Jong-sik, Counsel for the defendant-appellant)

Daejeon District Court Decision 2015Guhap101077 Decided June 22, 2016

September 8, 2016

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff, including the costs of supplementary participation.

The decision of the first instance is revoked. On February 16, 2015, the Central Labor Relations Commission revoked the decision of the first instance as to the application for unfair dismissal petition case between the Plaintiff and the Intervenor joining the Defendant on February 16, 2014.

1. Details of the decision on retrial;

The court's explanation on this part is consistent with the reasoning of the judgment of the court of first instance, except where "the plaintiff's intention" under Section 5 of the judgment of the court of first instance is deemed as "the intervenor's". Thus, the court's explanation on this part is based on Article 8 (2) of the Administrative Litigation Act and Article 420 of the Civil Procedure Act.

2. Whether the review decision in this case is appropriate;

A. Plaintiff’s assertion, relevant statutes, and facts of recognition

The court's explanation on this part is identical to the reasoning of the judgment of the court of first instance (Article 8 (2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

B. Determination

1) As to whether the Plaintiff bears the obligation to succeed to employment against the Intervenor

In light of the following circumstances, it is reasonable to view that the Plaintiff is obligated to succeed to the employment of the Intervenor, barring special circumstances. Therefore, the Plaintiff’s assertion on this part is rejected.

① The instant cleaning service specifications, which are included in part of the service contract, published at the time of the public announcement of the announcement of the tender for the instant cleaning service, stated as follows: “The contractor shall succeed to employment and maintain employment during the service contract period, barring special circumstances (Article 10(1) of the General specifications); and “The contractor shall, in principle, re-employment of the employees of the previous cleaning business entity except in special circumstances, take into account the characteristics of the nuclear power plant at the time of securing cleaning service workers.” (Article 4(d) of the Special specifications). This appears to have been particularly specified in order to prevent safety issues, etc. due to the frequent change of the trustee company in consideration of the characteristics of the nuclear power plant. Therefore, in this case, the Plaintiff’s acceptance of such terms and conditions of the Plaintiff’s employment succession was an important factor that the Plaintiff could have concluded the instant cleaning service contract (if the Plaintiff refused to accept such terms and conditions of employment succession, it seems highly likely that the instant cleaning service contract was not concluded).

② In the absence of special circumstances, the outsourcing service providers, who had been performing the instant cleaning services, succeeded to the employment of workers in the previous service company (the Plaintiff had been performing the instant cleaning services under contract from September 1, 2007 to August 31, 2008). The Intervenor 2 was about 17 years, and the Intervenor 3 was employed for about 12 years in succession to the foreign service company contracted for the instant cleaning services. The Intervenor 3 was expected to naturally succeed to the employment of the Plaintiff in accordance with such previous practices.

③ At the time of entering into the instant cleaning service contract, the Plaintiff and the Ulsan Nuclear Headquarters, as well as the parties to the contract, specified such succession of employment as the key contents of the contract as seen earlier, and thus, the Intervenor’s succession to employment appears to have been naturally premised on all the participants and all the persons related to the instant cleaning service contract.

④ The Plaintiff appears to have submitted the instant report to the U.S. Nuclear Headquarters, based on the premise that the Intervenor was liable to succeed to the employment, stating “the reason why the Intervenor did not succeed to the employment despite the need to comply with the above employment succession agreement.”

⑤ Under such circumstances, denying the existence of the obligation to succeed to employment by the Intervenor itself is limited to the Korea-U.S. Nuclear Headquarters, the other party to the cleaning service contract in this case, and it is not permissible under the principle of good faith as it lacks the legitimate trust of the Intervenor in accordance with previous practices and the terms of the cleaning service contract in this case.

(6) Meanwhile, the provision on the succession of employment of the cleaning service specifications of this case is sufficient to deem that it is a contract for a third party concluded for the purpose of having the third party acquire the right directly by the intervenors, in light of the purport of the provision specifically stipulating such provision. In this case, insofar as the intervenors expressed their intent to consent (requesting the succession of employment), the Plaintiff is obligated to directly assume the obligation of employment succession to the intervenors in accordance with the provision on the succession of employment of the cleaning service specifications of this case (the Plaintiff disputes the existence of the obligation of employment succession through Supreme Court Decision 2012Du14323 Decided December 12, 2013). However, the above case does not specify whether the former employees succeed to employment of the previous employees when entrusting an external company with the recycling goods collection business within the jurisdiction of the Gu and entrusting an external company with the business of collecting nuclear power plants, considering the unique nature of the nuclear power plant, the case differs from this case where the former employees are indicated as an essential matter of the contract

2) As to whether there is a reasonable ground to deny the Intervenor’s succession to employment

Although the Plaintiff asserts that the Intervenor was at issue with the suitability of employment, such as the impairment of organization, lack of expertise, etc. during work under the jurisdiction of ○○ Construction, there is no evidence to acknowledge this. Furthermore, even if the Plaintiff’s ground for refusal of employment as indicated in the instant ground for refusal is examined, the Plaintiff’s ground for refusal that the Intervenor 1 was an on-site agent employed by the previous service company cannot be considered as the ground for refusal of employment succession, and the ground for lack of capacity as the on-site agent is not specified in the specific act, and thus, it is insufficient to consider the lack of capacity as the on-site agent because it was impossible to resolve the problem, even if the Intervenor’s husband’s husband’s request the Plaintiff to succeed employment by call, it cannot be concluded that the Intervenor’s husband’s request was not a ground for refusal of employment succession. Furthermore, even if the Plaintiff’s husband’s request for employment succession by the Intervenor 2, it cannot be concluded that the Intervenor’s refusal of employment succession was not a specific ground for refusal of employment succession between the Intervenor and the previous service obligee’s for 27 years.

Therefore, the Plaintiff cannot be deemed to have a reasonable ground to refuse the succession of employment to the Intervenor. Therefore, the Plaintiff’s assertion on this part cannot be accepted.

3) Sub-determination

Ultimately, the plaintiff has a duty to succeed to the employment of the intervenors, and the failure of the plaintiff to employ the intervenors constitutes an unfair dismissal against the intervenors. Therefore, the decision of the retrial of this case is lawful on the same premise.

3. Conclusion

Therefore, the plaintiff's claim shall be dismissed as it is without merit, and the judgment of the court of first instance is just with this conclusion, and the plaintiff's appeal is dismissed.

The judge’s seat (Presiding Judge) Kim-type crime