In a case where Gap et al., a foundation Gap, filed an application for remedy on the ground that it constitutes an unfair dismissal with the local Labor Relations Commission after receiving a notice of termination of the contract, and subsequently rejected the application, the case holding that Eul et al. is an employee, and the above notice constitutes an ordinary dismissal, and there is no justifiable ground for dismissal.

In a case where Eul et al., a foundation Gap, filed an application for remedy on the ground that it constitutes an unfair dismissal with the Regional Labor Relations Commission after being notified of the termination of the contract, and the company Gap applied for a review with the National Labor Relations Commission and dismissed the application, the case holding that in a case where Eul et al., a worker Eul et al., a worker who provided labor in subordinate relationship for the purpose of wages, and a worker who entered into an employment contract with no fixed period of time pursuant to Article 4 (2) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers, the above notification constitutes an ordinary dismissal since it notifies a worker without a fixed period of time of termination of the employment contract unilaterally, and it is difficult to see that the evaluation of Eul et al, etc. was made in an appropriate and fair manner in accordance with the evaluation methods and procedures set forth in Article 23 (1) of the Labor Standards Act, and there is no justifiable ground for dismissal as provided in the above notification.

Article 4(1)6 and (2) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers, Article 3(3)6 of the Enforcement Decree of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers, Articles 18, 23(1), and 58(1) of the Labor Standards Act, Article 9(1) [Attachment 2] of the Enforcement Decree of the Labor Standards Act

Seoul High Court Decision 2006Na14484 decided May 1, 200

The Chairman of the National Labor Relations Commission

Defendant 1 and one other (Attorney Yoon Sung-bong et al., Counsel for the defendant-appellant)

November 3, 2015

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

On February 9, 2015, the National Labor Relations Commission revoked the review decision made by the Central Labor Relations Commission with respect to the case of the application for review of unfair dismissal by the Seoul Special Metropolitan City Nowon-gu Foundation, Seoul Special Metropolitan City Foundation, the foundation foundation foundation, for the review of unfair dismissal between the Plaintiff and the Intervenor joining the Defendant (hereinafter referred to as “the Intervenor”).

1. Details of the decision on retrial;

A. The plaintiff is a foundation established on June 1, 2005 and ordinarily employs approximately 127 workers, and the plaintiff is engaged in the performance business of the teaching group. The intervenors joined the plaintiff on June 1, 2005 and worked as a general member of the teaching group.

B. On January 20, 2014, the Plaintiff sent to the Intervenor a notice of results of re-evaluation of 2013 members, including the following matters, and notified the Intervenor of the termination of the contract as of June 30, 2014 (hereinafter “instant notice”).

According to the results of the re-evaluation of the position in the name of the tag included in the main sentence, a participant 1stst Vn member based on the disposition is disqualified pursuant to Articles 73 and 74 of the Operation Rules and 22nd Vn member.

C. On September 26, 2014, the Intervenor asserted that the instant notification was unfair and applied for remedy to the Seoul Regional Labor Relations Commission. On November 24, 2014, the Seoul Regional Labor Relations Commission accepted the Intervenor’s request for remedy on the ground that the Intervenor’s notification of this case was unfair, and that the Intervenor’s notification of the expiration of the contract was made to an employee with a fixed term of employment contract even though the Intervenor was an employee with a fixed term of employment, and that the Intervenor was also an employee with a fixed term of employment.

D. On December 15, 2014, the Plaintiff filed an application for reexamination with the National Labor Relations Commission on the grounds that it was dissatisfied with the foregoing initial inquiry tribunal, and the National Labor Relations Commission dismissed the Plaintiff’s application for reexamination on February 9, 2015.

[Reasons for Recognition] Unsatisfy, Gap evidence Nos. 1, 2, 3, 18, 19, and the purport of the whole pleadings

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

A. The plaintiff's assertion

1) The intervenors did not receive the direction and supervision of the Plaintiff during the course of performing their duties as a senior director with high level of expertise; the intervenors performed public performances using a musical instrument owned by an individual; the Plaintiff’s operational regulations prohibit members from holding concurrent offices as members; however, most of the members obtain separate income through an individual Leson for economic reasons; and the content of the labor contract made between the Plaintiff and the Intervenor differs from the content of the duties actually performed by the intervenors, the intervenors do not constitute workers under the Labor Standards Act. Accordingly, the instant notification cannot be viewed as dismissal.

2) Even if the Intervenor is the Plaintiff’s employee, the Intervenor is a fixed-term worker whose term of employment was fixed with the Plaintiff and whose average weekly working hours are less than 15 hours. As such, the Intervenor’s notification of this case is merely a notice of the termination of the contract and cannot be deemed dismissal, given that the contractual working hours per week under Article 4(1)6 proviso of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (hereinafter “ Fixed-Term Workers Act”) and Article 3(3)6 of the Enforcement Decree of the Fixed-Term Workers Act are clearly short of the contractual working hours per week under Article 18(3)6 of the Labor Standards Act. Therefore, even if the Plaintiff used the Intervenor as a fixed-term worker for more than two years, it cannot be deemed that the Intervenor was a worker who signed an employment contract without a fixed period under Article 4(2) of the Fixed-Term Workers Act.

3) Even if the instant notice is dismissed, the Plaintiff’s member is a chief class of the Korean highest level of classical music group and needs to continue to maintain its ability to provide a certain level of annual ability, and the Plaintiff granted a member an equitable opportunity to receive evaluation of his/her annual ability, and dismissed the Intervenor according to the result. Therefore, there is justifiable reason for the instant notice.

B. Relevant statutes

[Attachment] The entry is as follows.

C. Facts of recognition

1) Around February 1990, the Intervenor 1 and the Intervenor 2 entered the Seoul Metropolitan City Do Do Do Do Do Do Do Do Do Do. Around February 1992, the Intervenor 1 and around February 1992, the Intervenor 2 entered the Seoul Metropolitan City Do Do Do Do Do Do Do Do Do Do. On July 1, 1999, the position of the Intervenor was changed to the Seoul Do Do Do Do Do Do Do Do Do. The Intervenor entered into an employment contract with the Plaintiff on eight occasions on June 1, 2005, respectively, according to the independence of a separate foundation as indicated below (hereinafter “

The contract period of the table execution date contained in the main sentence shall be from June 1, 2005 to June 30, 2006 (13 months) from June 1, 2005 to June 30, 2006 (2 years) may be renewed from July 1, 2006 to June 30, 208, as a matter of course, from June 1, 2008 to June 30, 201 (2 years) from June 1, 2008 to June 30, 2016 to June 30, 2010 (2 years) from June 30, 201 to June 30, 201 (2 years).

2) Each of the instant employment contracts states that ① the Plaintiff is designated as the place of the Intervenor’s service, ② the intervenors provide the Intervenor with services such as performance and practice according to the contents designated by the Plaintiff, ③ the daily working hours shall be from 9:0 p.m. to 6:00 p.m., and, in principle, may be adjusted according to the circumstances of performance and practice. ④ The Plaintiff shall pay the Intervenor the basic annual salary (basic pay, overtime work hours, etc. for 456 hours a year), performance allowances, practice allowances, etc. ⑤ The Intervenor may be subject to disciplinary action, such as dismissal, against the Intervenor when it is deemed that the Intervenor’s ability or performance significantly lacks, or that the Intervenor is unable to perform his/her normal performance due to his/her physical or mental disorder, and Article 8 of the Rules on the Operation of the Plaintiff stipulates that “A member shall not engage in any for-profit business other than his/her duties, and shall obtain permission from the representative director when he/she intends to hold concurrent office for profit-making purposes.”

3) The Plaintiff subscribed to so-called four major insurance such as health insurance and employment insurance for the intervenors, and withheld and paid the Intervenor’s wage and salary income tax.

4) The Plaintiff determined the annual performance schedule and the entire practice schedule, and notified the members thereof (including overseas and local performances), and provided personal music maps to the members before the month they commenced the ordinary performance. Meanwhile, under the direction of the Plaintiff’s art supervision, the members performed the entire practice at the Plaintiff’s practice room more than 3 to 4 times on an average, and the Plaintiff did not separately provide a practice room for personal practice within the Plaintiff’s facility at any home or other places.

5) From August 16, 2013 to August 17, 2013, the Plaintiff had 62 general members, including the intervenors, f2, with their own musical instruments for about 3 to 5 minutes per individual, and conducted the evaluation of the members in 2013 by evaluating the technical capabilities (rhythm, strh, ethrhy, stonation), music capacity (music, sound, and interpretation capacity), general capabilities (e.g., attitudes, painting capacity, and reading capacity).

6) As a result of the recreation, the Intervenor 2: (i) 78.1 points in total (i) 10 points in public performance + 10 points in work attitude + 58.1 points in arts degree + 58.7 points in total 79.7 points in total (i.e., performance participation + 10 points in work attitude + 10 points in work attitude + 59.7 points in art degree); and (ii) the Intervenor 1 was granted an evaluation rating with L1 and L2 points in total among the members. The Intervenor became subject to re-divated with 13 persons who are granted L1 and L2 grades among the members.

7) On November 15, 2013, the Plaintiff notified the Intervenor of the content that “the subject matter of practical evaluation for renewal of the contract pursuant to Articles 73 and 74 of the Operating Rules” is “the subject matter of practical evaluation for renewal of the contract.”

8) On January 8, 2014, the Plaintiff conducted re-affort to determine whether to re-contract with the intervenors, and the intervenors were judged to have failed all by three examiners (art supervisor, musical music, and forumpets).

[Reasons for Recognition] A without dispute, Gap evidence Nos. 8 through 17 (including each number; hereinafter the same shall apply), Eul evidence Nos. 1, 9, 10, and 18, non-party 1's testimony, non-party 2's testimony, non-party 2's testimony, and the purport of the whole pleadings

D. Determination

1) Whether to recognize employee status

Determination of whether an employee is a worker under the Labor Standards Act ought to be made depending on whether the form of a contract is an employment contract or a contract for employment, and whether an employee in substance provides labor in a subordinate relationship with an employer for the purpose of wages at a business or workplace. Determination of whether an employee is a subordinate relationship ought to be made depending on whether the employer determines the content of work, and is subject to the rules of employment or employment regulations, etc., and whether the employer is subject to considerable direction and supervision in the course of performing work, whether the employer is subject to the designation of working hours and working places, whether the employer is allowed to operate his/her business on his/her own account, such as possessing equipment, raw materials, working tools, etc., or having a third party employ and act on behalf of the employer. Determination of whether the employee has a superior economic and social condition such as the employment relationship, whether the employee has a nature of remuneration, whether the nature of remuneration was determined by the basic wage or fixed wage, whether the employee has an exclusive nature to the employee, and whether the employee has an exclusive status in the social security system, etc. is determined.

The above facts are revealed in addition to the purport of the entire arguments, namely, the following circumstances: ① written labor contract of this case, which prescribes the forms of work and salaries between the Plaintiff and the Intervenor; ② performance and full practice schedule is set by the Plaintiff; ③ the Plaintiff’s regulations on the management of the Plaintiff, which provide for the matters regarding the personnel management and service of the Intervenor, are applied to the Intervenor; ③ the Intervenor was paid from the Plaintiff as remuneration for the basic annual salary, which is a fixed wage; ④ the Intervenor was covered by the so-called four-called - such as health insurance, employment insurance, etc.; ④ the Intervenor was paid for the Intervenor’s wage after collecting the wage, etc.; ⑤ Article 8 of the Plaintiff’s regulations on the management of the Plaintiff’s personnel prevents the Intervenor from engaging in a profit-making business other than his duties; and the Intervenor did not hold a concurrent office as a member of the Plaintiff; and the Intervenor’s assertion that the Intervenor provided labor for the purpose of his wage constitutes a subordinate worker is not acceptable.

2) Whether a non-fixed term employment contract was concluded

According to the main text of Article 4(1) and Article 4(2) of the Fixed-term Workers Act, if an employer employs a fixed-term worker for more than two years, in principle, such fixed-term worker shall be deemed an employee who has concluded an employment contract without a fixed period of time. The Intervenor was on June 23, 2005 by entering into an employment contract with the Plaintiff for the first time with the Plaintiff on June 23, 2005, and on June 1, 2008 after the enforcement of the Fixed-term Workers Act, the term of the contract was fixed from July 1, 2008 to June 31, 2010, and continued to serve after the Plaintiff entered into a renewal contract with the Plaintiff on June 1, 2008. Thus, it is apparent that the Intervenor was unilaterally employed by the Intervenor for more than two years after the enforcement of the Fixed-term Workers Act, and thus, it is reasonable to see that the Intervenor was not subject to a fixed period of employment contract from July 1, 2008 to July 14.

For this reason, the Plaintiff’s working hours are only the total hours of public performance and all practice, and the individual practice hours are autonomously conducted without the direction and supervision of the Plaintiff to improve his/her actual ability, and thus, cannot be deemed as the provision of labor to the Plaintiff. Thus, the Plaintiff asserts to the effect that the Intervenor’s work hours are less than 15 hours a week average working hours are less than 15 hours, and Article 4(1)6 proviso of the Fixed-term Work Act and Article 3(3)6 of the Enforcement Decree of the Fixed-Term Work Act provide that the part-time worker whose contractual working hours are clearly short of the weekly working hours under Article 18(3) of the Labor Standards Act, and that the Intervenor’s work hours are not part-time workers who signed an employment contract without a fixed period.

In light of the above facts, the following circumstances, i.e., (i) it is clearly stated in each of the instant labor contracts that “working hours shall, in principle, be from 9:0 a.m. to 6 p.m., but may be adjusted according to performance and practice circumstances”; (ii) it is anticipated that the time of the Intervenor’s work hours will inevitably change according to the performance and overall practice schedule determined by the Plaintiff; and (iii) it is difficult for the Intervenor to limit working hours to the part of the Intervenor’s private practice and overall practice; and (iv) the Intervenor’s personal practice room is not established in the Plaintiff’s facility, unlike the entire practice; and (v) the Plaintiff’s argument that it is difficult to determine working hours for the Intervenor’s individual practice and part of the part-time worker’s daily work hours, such as providing the Intervenor with a bad attendance to 9:0 p.m. for that purpose; and (v) it is difficult for the Intervenor to determine working hours of the Intervenor’s personal practice or part of the part-time worker’s daily work hours outside the Plaintiff’s labor contract.

3) Whether dismissal under Article 23(1) of the Labor Standards Act is “justifiable cause”

A) The Plaintiff is a juristic person established for the purpose of expanding the opportunity to enjoy culture and arts for the Seoul Special Metropolitan City residents through its activities, and widely expressing the music levels and capabilities of Seoul as a cultural city at home and abroad. As such, its members should maintain not only each individual’s artistic skills, but also endeavor to improve their skills and qualities as artists, and shall be able to faithfully participate in the whole practice and performance and to harmonize with other members. Furthermore, the Plaintiff needs to maintain the high quality of public performance by regularly evaluating various elements required as a teaching group, including the artistic skills of its members, and withdrawing members who fall short of certain standards from office. Accordingly, the Plaintiff’s dismissal of its members by regularly conducting fair and reasonable evaluation in accordance with objective and fair evaluation methods, procedures and evaluation standards may be recognized as “justifiable grounds” of dismissal provided for in Article 23(1) of the Labor Standards Act.

B) First of all, we examine whether the evaluation of the participants was conducted in accordance with objective and fair evaluation methods and procedures. According to the Plaintiff’s operating rules (No. 4-2) and the rules for the evaluation of the members (No. 6-2), the artistic supervisor shall conduct regular evaluation and practical evaluation in parallel for the improvement of the members’ skills and service management (Article 69(1) of the Operating Rules); the regular evaluation shall be conducted 80 percent of the artistic skills; the performance degree and working attitude evaluation (Article 70(1)); the performance evaluation committee designated by the artistic supervisor shall record the opinions on the individual members and submit the results of the evaluation to the Director after the completion of the performance; the contract period of the evaluation committee shall be submitted to the Director on April and May; the contract period shall be 7; the contract period shall be renewed; the contract period shall be renewed; the contract period shall be renewed by the contract management regulations (Article 70(4); the contract period shall be renewed by the contract management regulations (Article 8(2) of the members); the contract evaluation committee shall be renewed by 1501) and 2).

Comprehensively taking into account the structure and contents of the above relevant provisions, a member evaluation prescribed by the Plaintiff’s operating rules, etc. is, in principle, belonging to the broad discretion assigned to an evaluator’s own artistic and autonomous judgment. However, in order to ensure fairness and reliability in a member evaluation that has a significant impact on personnel interests, such as remuneration for members and renewal of a contract, the member evaluation shall be conducted in an appropriate and fair manner in accordance with the methods and procedures prescribed by the operating regulations, etc.

C) However, according to the above facts, the Plaintiff’s regular evaluation as to the members, including the intervenors, was replaced by the operation regulations, etc. at will, and the Plaintiff made the instant notification on the ground that it was judged to have failed to pass the evaluation after it was conducted only on the part of the intervenors, based on the result of the malfunction. The above evaluation of the Intervenor’s members cannot be deemed to have been conducted in an appropriate and fair manner in accordance with the evaluation methods and evaluation procedures stipulated by the operation regulations, etc. Furthermore, the instant notification based thereon cannot be deemed to have a justifiable ground for dismissal under Article 23(1) of the Labor Standards Act. Accordingly, the Plaintiff’s above assertion is not acceptable (whether the evaluation criteria prepared by the Plaintiff are fair and reasonable, or whether the appraiser has made an adequate and reasonable evaluation in accordance with the evaluation criteria).

3. Conclusion

Therefore, the decision of the retrial of this case is legitimate, and the plaintiff's request is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment] Relevant Statutes: omitted

Judges Happiness (Presiding Judge)