2010 Ghana 142537 Payment of honorary retirement allowances

Park ○

Busan So-gu

○○○○○

Busan Seo-gu

Representative Park ○○○

Law Firm International Law Firm

Attorney Han Won-su, Park Young-young, Lee Han-young

October 14, 2011

December 9, 2011

1. The defendant shall pay to the plaintiff 24,69,600 won with 5% interest per annum from January 6, 201 to December 9, 2011, and 20% interest per annum from the next day to the day of complete payment.

2. The plaintiff's remaining claims are dismissed.

3. One-half of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 57,632,40 won with 20% interest per annum from the day following the day of service of a copy of the complaint of this case to the day of complete payment.

1. Facts of the premise without dispute;

On October 15, 1987, the Plaintiff is a person employed by the Defendant corporation to serve as an employee of class V in general service. On October 2, 2009, the Defendant publicly announced an application for the payment of honorary retirement allowances to the faculty and staff and received the application from November 2, 2009 to February 13, 2009. The written public notice states that the expected date of retirement is between March 1, 201 and February 28, 201, and the end of each month in the case of employees.

On November 11, 2009, the Plaintiff filed an application for voluntary retirement with the Defendant on February 28, 2016, which is the end of the semester to which the date when the Plaintiff reached the age of 58 belongs. The Defendant, on December 28, 2009, notified the Plaintiff of the determination that he/she was eligible for voluntary retirement allowances and the desired date of retirement as of August 31, 2010. The Plaintiff voluntarily retired on September 1, 2010. The Defendant, on September 10, 2010, deemed the Plaintiff’s retirement age of Grade 6, as the retirement age of Grade 57, and paid KRW 148,197,60 to the Plaintiff. The Defendant, who concluded a collective agreement with the National University Workers’ Union ○○○○○○ (hereinafter referred to as “Trade”) (hereinafter referred to as “Korean Workers’ Union”), that the Plaintiff’ retirement age of Grade 1 and Grade 2, 2015, was determined as the retirement age of Grade 2, 15, and 5, respectively.

2. Determination as to the ground for appeal No. 1

A. The plaintiff's assertion

In order to calculate the remaining retirement age for the Plaintiff’s retirement allowances, the retirement age of class 5 employees shall be applied to the Plaintiff’s retirement age, 60 years of age, 5,632,400, and damages for delay shall be paid to the Plaintiff. The Defendant is obliged to pay the Plaintiff the difference between retirement allowances under the above age 60, 57,632,40 and damages for delay.

Furthermore, even if the Plaintiff applies the retirement age of class 6 employee, the retirement age of class 6 employee under the amended State Public Officials Act shall be 58. Therefore, the Defendant is obliged to pay the Plaintiff the difference between the honorary retirement allowances under the above age 58 and the delay damages therefrom.

B. Determination

1) In general, with respect to whether the retirement age of class 5 employees should be applied to the Plaintiff, the purpose of the employee system is to inspire the employee’s desire to work and revitalize the organization by treating the employees who have failed to promote due to personnel affairs and have been able to be in good faith and with the equivalent rank. In light of the purpose of the aforementioned system, the selection of the employee to be treated is a concept different from that of promotion to higher class. Unless otherwise stipulated, it should be deemed that the appointment authority’s discretionary discretion to specifically treat the employees, which is equivalent to the higher class, should be deemed to have been given.

Although the Plaintiff asserts that the retirement age should also apply to the employee of the Defendant corporation, who received the same treatment as that of the higher class, in the determination of salary grade, payment of wages, appointment authority, etc., the Plaintiff’s assertion that the retirement age should also be applied to the higher class. However, it is difficult to view that the Plaintiff’s assertion that the same retirement age as the class 5 employee should be applied to the class 5 employee.

2) As to whether the Plaintiff’s retirement age at the time of approval for voluntary retirement was several years of age, there is a dispute as to whether the Defendant’s retirement age for class 6 employees under the collective agreement in 2008, which was applied at the time of December 28, 2009, was several years of age. The fact that the collective agreement in 2008, which the Defendant and the labor union concluded, provides that the State Public Officials Act shall apply mutatis mutandis to the employee’s retirement age. As seen earlier, Article 74(1) of the State Public Officials Act, amended by Act No. 9113, Jun. 13, 2008, extends the retirement age for class 6 public officials from the existing age of 57 to 60 years, notwithstanding Article 2 of the Addenda, the retirement age from 2009 to 2010 should be 58 years of age, so the Plaintiff’s retirement age at the time of December 28, 2009 under the collective agreement in 208.

The Defendant asserts that the collective agreement in 2008 came into force on June 10, 2008, which is, before June 13, 2008, the State Public Officials Act was amended as above. As such, the retirement age for employees of class 6 or below pursuant to the State Public Officials Act prior to the amendment shall be 57 years of age, and even if the amended State Public Officials Act applies, the Defendant’s provision on the payment of retirement allowances shall be based on the retirement age prior to the extension in cases of a person whose retirement age is extended at the time of calculating the remaining retirement age. Therefore, the Plaintiff’s initial retirement age should be

However, even though the collective agreement in 2008 can set the retirement age for employees of class 6 or below at 57 on its own, it is interpreted to the purport that the defendant agreed to guarantee the same retirement age as that for the public officials under the State Public Officials Act. Thus, the changed retirement age naturally applies in cases where the change occurs in the retirement age due to the revision of the State Public Officials Act, and the State Public Officials Act before the amendment cannot be viewed as still applicable.

In addition, Article 2(4) of the Defendant’s provision on the payment of honorary retirement allowances can be found in Article 3(4) of the provision on the payment of honorary retirement allowances, etc., and the above provision applies only to a person whose retirement age has been extended individually upon application by the relevant party pursuant to Article 74(3)2 of the former State Public Officials Act (amended by Act No. 5527, Feb. 24, 1998). In this case, it cannot be interpreted that the provision applies to a case where the retirement age has been uniformly extended pursuant to relevant statutes or collective agreements (the interpretation of the Defendant’s assertion is inappropriate as it basically results in the result that the employee who applied for voluntary retirement for at least 20 years should calculate the retirement age based on the retirement age, which was the lowest provision on the total period of service). The Defendant’s above assertion

3) As to which time the honorary retirement allowances should be calculated, the term “voluntary retirement” refers to the termination of employment by an agreement after examining the requirements of an employer upon an employee’s application for voluntary retirement, and after such agreement is reached, one of the parties can not withdraw his/her intent at his/her own discretion and according to this agreement.

When the scheduled date of voluntary retirement arrives, an employee is naturally retired and an employer is obligated to pay the voluntary retirement amount (see Supreme Court Decision 98Da42172, Jul. 7, 2000). In this case, the Plaintiff entered the retirement age as February 28, 2016, which belongs to the date on which the Plaintiff reaches the age of 58, to the Defendant on November 11, 2009, and filed an application for voluntary retirement with the Defendant on February 28, 2016, which belongs to the date on which the Plaintiff reaches the age of 58. The Defendant notified the Plaintiff that he was determined as a person eligible for voluntary retirement, and did not mention the retirement age as to the retirement age on December 28, 2009. In light of the above facts, the Plaintiff’s retirement age as of December 28, 2009 as of December 28, 2009, barring any special circumstances.

As to this, the Defendant asserts that the validity of the voluntary retirement comes into force on the date of actual voluntary retirement, and that the collective agreement of 2010, which was concluded on April 23, 2010 before the Plaintiff to extend the retirement age of class 6 employees from the year 2011 to 58, the retirement age applicable to the Plaintiff shall be 57 years, and that even if the collective agreement of 2010 was amended disadvantageous to workers compared to the collective agreement of 2008, the above amendment agreement shall not be deemed to constitute abuse of rights, insofar as it was agreed upon through legitimate procedures with the trade union having the authority to consent.

However, it is reasonable to view that the collective agreement and the provision of remuneration applicable to the calculation of the voluntary retirement allowance as a core part of the matters concerning the voluntary retirement agreement would be the basis of the decision-making of the parties. Barring special circumstances, such as that the collective agreement and the provision of remuneration in the future at the time of approval of the voluntary retirement was scheduled to be amended and the actual amendment was made after the agreement was made, even if the voluntary retirement becomes effective at the date of approval of the voluntary retirement, in accordance

It would be reasonable to calculate the allowance for voluntary retirement in accordance with the intention of the parties at the time of the agreement on voluntary retirement.3) However, no circumstance exists to deem that the content of the amendment of the collective agreement in 2010 concluded after 4 months from the date of approval for voluntary retirement was reflected or considered in the agreement between the Plaintiff and the Defendant, and rather, according to the testimony of the head of the labor union and the head of the labor union’s branch office, even though the employee’s retirement age was extended by the amendment of the State Public Officials Act, the amendment of the collective agreement in question was inevitable even if the employee’s retirement age was extended by the amendment of the State Public Officials Act. The above assertion by the Defendant is without merit.

3. Conclusion

Therefore, on February 29, 2016, which is the end of the semester to which the Plaintiff reached the age of 58 belongs, the Defendant is obligated to pay to the Plaintiff KRW 172,897,200 [the amount of monthly salary of the Plaintiff at the time of retirement + KRW 2,74,400 】 [the amount of monthly salary of the Plaintiff at the time of retirement + KRW 60 + (66 months after the retirement age ? 66 months: 60]] minus the amount of KRW 148,197,60 already paid to the Plaintiff, and the remainder of KRW 24,69,600 from January 6, 2011, on which the copy of the complaint of this case sought by the Plaintiff was served on the Defendant, to dispute about the existence or scope of the obligation of the Defendant to perform, 5% per annum from the day after the date when the Civil Act is imposed until December 9, 2011; and 20% per annum from the day when the payment is made.

Judges out of Category

1) Pursuant to Article 1 of the Addenda, the term of validity of the above agreement is from June 10, 2008 to June 9, 2010.

2) The former State Public Officials Act (amended by Act No. 5527 of Feb. 24, 1998)

(3) The retirement age of public officials of Grade V or higher in technical job series, and public officials of Grade VI or lower in technical job series, among the retirement age of public officials under paragraph (1) 1 and subparagraph 2 of the same paragraph.

The retirement age of public officials prescribed in subparagraph shall be determined by the National Assembly Regulations, Constitutional Court Regulations, National Election Commission Regulations, or Presidential Decree.

(d) may be extended by up to three years.

3) Even in cases where the retirement age at the time of scheduled date of voluntary retirement increases above the retirement age at the time of the approval date of voluntary retirement, the scheduled date of voluntary retirement, unless there are special circumstances.

A person can only seek the payment of the originally agreed voluntary retirement.