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The judgment below
The part of the claim for annual leave allowance is reversed, and this part of the case is remanded to Busan High Court.
Reasons
The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).
1. As to the ground of appeal on the claim for annual leave allowance
(a) The paid annual leave under Article 60(1) of the Labor Standards Act shall be granted to workers who have worked not less than 80 per annum;
In such cases, whether a worker has worked at least 80% per year shall be determined based on the ratio of the number of days worked actually provided by an employee to work, i.e., the number of days worked, among the days calculated by subtracting the days determined as not obligated to work in accordance with Acts and subordinate statutes, the collective agreement, the employment rules, etc. from the total calendar days of one year (hereinafter referred to
(see, e.g., Supreme Court Decision 2011Da4629, Dec. 26, 2013). Meanwhile, Article 60(6)1 of the Labor Standards Act (hereinafter “instant provision”) provides that when calculating the attendance rate as above, the period during which an employee was at work due to an occupational injury or disease (hereinafter “occupational accident”) shall be deemed to have worked at work.
The purpose of this is to prevent disadvantages that a worker could not provide labor due to an occupational accident, but less than an occupational accident has been granted annual leave.
Therefore, the period of work suspended due to occupational accidents should be calculated by including both contractual working days and work days, regardless of the length of the worker's work.
Even if the period extends over one year as a whole or accounts for all contractual working days, there is no reason or reason to see otherwise.
In addition, if a worker fails to use his/her annual leave within one year after he/she acquired his/her right to his/her annual leave or retires before one year elapses, he/she can not use his/her annual leave more due to reasons such as retirement, the wage corresponding to the number of his/her annual leave days is the employer.