Plaintiff 1 and nine others (Attorneys Lee Jae-soo et al., Counsel for the plaintiff-appellant)

Korea-U.S. Bank (Law Firm, Kim & Lee, Attorneys Kang Yong-tae et al., Counsel for the defendant-appellant)

June 26, 2002

Seoul District Court Decision 99Gahap51383 delivered on September 1, 2000

1. Revocation of a judgment of the first instance;

2. We affirm that the Defendant’s dismissal of the Plaintiffs on April 30, 1999 against the Plaintiffs is null and void.

3. The defendant's monthly average wage from May 1, 1999 to the date of returning the plaintiffs to the original state.

The monthly average wage shall be paid at the rate of each corresponding gold source stated in the table.

4. The total costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Basic facts

The following facts are not disputed between the parties, or there is no dispute between the parties, Gap evidence Nos. 1 through 3, Eul evidence No. 4-1, 2, 5-4, Eul evidence No. 6-1 through 8, Eul evidence No. 16-1, Eul evidence No. 2, 3-24, Eul evidence No. 4, Eul evidence No. 5, 6, 7-1 through 24, Eul evidence No. 10, Eul evidence No. 11-1, 2, Eul evidence No. 12, 16, Eul evidence No. 19, Eul evidence No. 20-1, and Eul evidence No. 20-1, and Eul evidence No. 1, and Eul evidence No. 16-2 (except for the part of non-party No. 1's evidence No. 19-1 and non-party No. 2's testimony contrary to the purport of the evidence No. 9-1 and non-party 2's testimony.

A. On June 29, 1998, the defendant bank acquired the assets and liabilities of the Gyeonggi Bank (hereinafter referred to as the "Game Bank") through a decision on contract transfer based on Article 14(2) of the former Act on the Structural Improvement of the Financial Industry (amended by Act No. 5549 of September 14, 1998).

B. The process of concluding the employment contract between the Defendant Bank and the Plaintiffs

(1) As above, Defendant Bank established a policy to hire some of the employees of the existing sports bank upon acquiring the assets and liabilities of the sports bank, and notified each branch of the sports bank of the following employment outlines around August 199.

(A) Employment guidelines for employees of Class III or higher in the Gyeonggi Bank

The employment field and the number of employees shall be not more than 50 persons in charge of affairs, such as the business store, business store credit review, loan and foreign exchange affairs, and the screening method shall be conducted by document screening and interview, and the employees who have passed the screening shall be employed first as contract workers, but shall be converted into regular employees on September 29, 1998 when the contract is terminated.

(B) Employment guidelines for employees of class IV or lower in the Gyeonggi Bank

The employment field and the number of employees shall be not more than 220 persons in general service in charge of planning, research, examination, etc., not more than 20 persons in charge of general service, not more than 200 persons in charge of administration, and not more than 550 persons in charge of administration, such as receipt and disbursement, exchange of bills, deposit, and counter services, and the screening method shall be limited to the document screening if the results of the document screening are excellent, and the remaining documents screening and interview shall be conducted, and the employees who have passed the above screening and are employed shall be converted to the full-time employees on September 29, 198 when the contract is terminated.

(2) In accordance with the above recruitment outline, the Defendant Bank submitted a written application for 2,014 out of the employees of the existing Gyeonggi Bank, and subsequently conducted a screening according to the screening method set out in the above recruitment outline, and subsequently notified 1,017 out of them.

(3) As above, Defendant Bank continued to work under the Gyeonggi Bank once until September 29, 1998, which was designated by the Financial Supervisory Commission as the expiration date for underwriting business to the Gyeonggi Bank for the convenience of business operations. Defendant Bank extended the business suspension period on September 11, 1999 by the Financial Supervisory Commission to October 31, 1999, and the employees of Grade IV or lower were dismissed from the Gyeonggi Bank. As the employees of Grade IV or lower were dismissed from office on October 1, 1998, the employment contract was concluded between the employees of Grade IV or lower and the period from October 1, 1998 to October 31, 1998, respectively.

(4) On November 2, 1998, when the above employment contract term expires, the defendant bank entered into an employment contract including the above contents (hereinafter referred to as the employment contract in this case) with the employees of class 4 and class 70 per cent higher than those of class 4 and the employees of class 70 per cent higher than those of class 4 and, at the end of the above employment period, the employee must undergo the probationary period determined by the employer within the limit of six months prior to employment, and the defendant bank may dismiss the employees at the end of the above period: Provided, That if necessary, the defendant bank may appoint the employees without the probationary period. However, upon entering into an employment contract (the probationary period was set at three months as three months) (hereinafter referred to as the "employment contract in this case"), and submitted a written pledge to avoid raising any objection to the above employment terms, and then between the employees of class 30 per cent higher and the other sub-30 per cent, the employment contract should be concluded within the period of one year as contract, and the ability to work and restructuring after the adjustment.

(5) On the other hand, the plaintiffs, as employees of Class IV or lower of the Gyeonggi Bank, were employed to the Defendant Bank on the grounds of the aforementioned circumstances, concluded the employment contract on October 1, 1998, and entered into the instant employment contract on November 2, 1998 (Provided, That the plaintiff 7 set the probation period to three months), respectively, and submitted the said written pledge to the Defendant Bank, respectively.

(c) Execution of work performance ratings;

(1) On April 199, the defendant bank entered into the instant employment contract including the plaintiffs, from November 199 to March 3 (5) of the 1999, and conducted work performance ratings to determine whether employees are continuously employed by each individual, to review data on regular promotion and to prepare promotion review data for 736 employees from the Gyeonggi Bank who were employed by the defendant bank. In the case of the business office, the appraiser shall be determined as the business office manager, the head of the division or team office in the case of the business office, and the head of the headquarters in the case of the business office, and the head of the team office in the case of the business office, and the evaluation factor shall be determined as the business office manager, the degree of duty performance and performance (60%), and the evaluation period shall be from November 1, 199 to March 199 (5). The evaluation grade shall be determined as A (deposit), B (B) (B) (B) (B) (T) (T) (T) (A) (in the case of the low-class employees, and shall be determined as Category C (4) (3).

(2) However, the Defendant Bank assigned the number of persons to be employed by each branch, i.e., C or D, the number of persons to be employed by each branch, and the head of the Defendant Bank’s Incheon Business Headquarters Nonparty 3 demanded the re-preparation of the work performance rating table already submitted at the mother’s location on April 1999 by the head of the branch office affiliated with the Defendant Bank Incheon Business Headquarters, and some of the branch offices were re-preparation of the work performance rating table (for this reason, in the case of Plaintiffs 2 and 3, the head of the branch office appears

(3) As a result of the above work performance rating, 650 of the above 736 employees were rated A or B, but the remaining 86 employees including the plaintiffs were selected as persons subject to termination of an employment contract after receiving the rating of C or D. The defendant bank had the evaluation officer first submit an evaluation statement in supplement of the work performance rating table for the persons subject to termination of the above employment contract, and the defendant bank terminated the employment contract in this case on April 27, 1999 for 84 other than the two already retired during the evaluation period and on April 28, 199 for 42 persons including the plaintiffs, including the plaintiffs, after conducting an individual interview over both days on April 27, 199 and December 28, 199.

(4) On the other hand, a large number of the evaluators and reporters who made the above work performance rating were assessed in comparison with other employees in the relevant branch or department in evaluating the employees subject to such rating.

D. Personnel regulations of the Defendant Bank

A person who has passed the screening under Article 19 shall be appointed as an employee through a fixed training period: Provided, That if necessary, he/she may be appointed as an employee without the fixed training period.

Article 20 (Operation of Circuit) In cases of office affairs, an employee shall be employed through the internship course for a fixed period of time. An intern shall be employed for a fixed period of time, but if it is deemed disqualified during the internship period, he/she shall not be employed as an employee.

2. Judgment on the claim to nullify dismissal

(a) Formation of conditional employment contracts;

(1) According to the above facts, the instant employment contract constitutes a so-called temporary employment contract with a probationary period in order to determine the vocational ability of the pertinent worker on the premise of regular employment before establishing a conclusive employment relationship, and the probationary period is six months (three months in the case of Plaintiff 7), barring any special circumstances.

(2) Judgment on the plaintiffs' assertion

(A) As to this, the Plaintiffs presented the recruitment contract to the Plaintiffs prior to the conclusion of the instant employment contract, and thereby, the recruitment contract became the content of the instant employment contract. The above recruitment contract explicitly stated that the employment contract should be converted to regular employees from September 29, 198, as well as that the Defendant bank notified the Plaintiffs that the instant employment contract was a conditional employment contract, and thus, the instant employment contract cannot be deemed as a temporary employment contract. ② Unlike the case where Defendant bank employs other career employees, it would be null and void as it violates the Labor Standards Act prohibiting the discrimination against the Plaintiffs, and ③ it would have to set the employment contract period under the rules of employment of the Defendant bank, which would have to be set forth in the current employment contract terms, as well as the current employment contract terms, as the current employment contract terms of the Defendant bank’s employment contract terms, and thus, it would have to be invalid as the current employment contract terms of the Defendant bank’s employment contract terms.

(B) Therefore, as to the above part (1) argument, it is reasonable to see that the above part (1) is a regular employee who is separate from the so-called contract-based worker, except for the so-called temporary employee whose right of dismissal is reserved during the time limit, and as to the above part (1) argument, the defendant bank was employed as an employee of the defendant bank by submitting a written application for entering the defendant bank according to the employment outline notified by the defendant bank to the plaintiffs, and the above employment outline is that the defendant bank employs the plaintiffs first as contract-based worker with respect to the employment condition or form of the plaintiffs, but is converted into a "regular employee" on September 29, 1998 with the termination of the contract term. However, the above employment contract cannot be seen as having violated the employment contract of this case since the defendant bank submitted the above employment contract of this case with the content that it would not raise any objection to the above employment condition of the defendant bank. Thus, the above employment contract of this case cannot be seen as having violated the employment contract of this case.

② We examine the above part of the argument, unlike other career employees, since the conclusion of a probationary employment contract with the plaintiffs, it cannot be deemed as violating the provision prohibiting the discrimination of workers under the Labor Standards Act. Therefore, the above argument is without merit.

(3) On the above argument, Article 19 of the Personnel Regulations of Defendant Bank provides that "Any person who has passed a full-time employment contract shall be appointed as an employee subject to a certain duration of probation: Provided, That if necessary, it shall be appointed as an employee without a duration of probation," and it cannot be deemed invalid since Article 20 of the Personnel Regulations provides separate provisions from Article 19 of the above, which excludes the duration of probationary employment contract for employees, so it cannot be deemed that there is no ground provision on probationary employment contract under the Rules of Employment of Defendant Bank. Accordingly, in light of the above structure of Article 2 (a) of the Employment Contract of this case, even if the Employment Contract of this case provides that the Employment Contract of this case may be appointed as an employee without a duration of probationary employment, it is evident that there is no provision on probationary employment contract of this case, and thus, it cannot be deemed that the above provision does not apply to the employment contract of this case for a certain period of time within the scope of 7 months or more (the proviso of Article 2 (3) of the Employment Contract of this case).

(4) On the above argument, there is no evidence to acknowledge that the defendant bank forced the plaintiffs to prepare the employment contract of this case, and there is a significant difference between the plaintiffs and the defendant bank in their economic status, it can be viewed that the employment contract of this case constitutes an unfair juristic act. Otherwise, there is no assertion or proof as to the circumstance that the employment contract of this case constitutes an unfair juristic act, and therefore, the plaintiffs' assertion is therefore without merit.

⑤ We examine the above part of the assertion. The plaintiffs cannot be deemed to have become full-time members of the defendant bank at least on October 1, 1998 on the basis of the employment outline, and the defendant bank concluded the labor contract of this case with the plaintiffs after four months of time after the above decision to transfer contract was made, and the contract of this case was concluded with the plaintiffs after four months of time after the above decision to transfer contract, and thus, it cannot be deemed that the conclusion of the labor contract of this case is contrary

6) In light of the above argument, in light of the background leading up to the acquisition of assets and liabilities of the Gyeonggi Bank and the background leading up to the conclusion of the contract-based employment contract between the Defendant Bank and the Plaintiffs, it cannot be deemed that the Plaintiffs actually worked under the direction of the Defendant Bank for about four months from the date of the above decision on contract transfer until the date of the contract transfer, or that even if the Defendant Bank served as a contract-based employee of the Defendant Bank, it did not go through the starting period. It cannot be concluded that the Defendant Bank employed the Plaintiffs for setting the starting period in accordance with the personnel regulations of the Defendant Bank with the Labor Standards Act is for the purpose

B. Whether the dismissal of this case is null and void upon the lapse of the available period

(1) According to the above employment contract of this case, the plaintiffs claim that the defendant bank dismissed the plaintiffs by exercising the right to terminate the contract of this case on April 30, 1999, which was executed after the expiration of the time period, as a regular employee of the defendant bank. Thus, the plaintiffs asserted that the dismissal of the plaintiffs by exercising the right to terminate the contract of this case on September 30, 1999 is unjust.

(2) The facts that the defendant bank entered into a contract employment contract with the plaintiffs on October 1, 1998 due to the business suspension period of the Gyeonggi Bank's underwriting business, the delay of the Gyeonggi Bank's underwriting business, and the extension of the business suspension period of the Gyeonggi Bank's Financial Supervisory Commission, etc., but the contract of this case was made on November 2, 1998, and the contract of this case was made on November 2, 1998 as seen above. Accordingly, according to this, it is obvious that the plaintiffs' probation period should be calculated from November 2, 1998. Accordingly, each of the dismissals of this case against the plaintiffs other than plaintiffs 7 should be executed before the elapse of six months, which is its probation period, and therefore the remaining plaintiffs' claims except plaintiffs 7 are without merit.

(3) However, as seen earlier, the Defendant Bank concluded the instant employment contract with the Plaintiff 7 for a three-month period, and barring any other special circumstance, it is unreasonable for the Defendant Bank to dismiss the said Plaintiff by exercising the right of termination reserved in the instant employment contract on April 30, 199, after the three-month grace period for Plaintiff 7 passed, barring any other special circumstance. Accordingly, the dismissal made by the Defendant Bank against the said Plaintiff shall be null and void.

C. Whether there exists a justifiable reason for the dismissal of the instant case (excluding Plaintiff 7)

(1) The Plaintiffs asserted that each of the instant dismissal is null and void due to the lack of justifiable grounds, and accordingly, the Defendant Bank asserted that the Plaintiffs were disqualified in light of the Plaintiffs’ working attitude during the probationary period, etc., and thus, the Plaintiffs exercised the right to terminate the instant employment contract with the Plaintiffs by exercising the right to terminate the instant employment contract, and thus, there is justifiable grounds.

(2) Determination:

The so-called temporary employment contract may terminate the employment contract by exercising the right to terminate the contract at the time of termination of the employment contract. However, the exercise of the right to terminate the employment contract as above constitutes dismissal under the Labor Standards Act. However, it can be widely recognized rather than ordinary dismissal, but it can not be arbitrarily exercised by the employer's full free discretion or arbitrary exercise of the right to terminate the employment contract, in light of the contents and nature of the work, there is no objective and reasonable reason to deem that the temporary employment contract is inappropriate for the employer to be employed at the time of termination of the employment contract, and there is no reasonable ground to believe that the above temporary employment contract is unreasonable for each of the above employees to determine the plaintiffs' capability to terminate the employment contract, and there is no other reasonable ground to believe that the defendant bank's new employment contract is unreasonable for each of the above employees to determine the plaintiffs' capability to terminate the employment contract as well as the service performance rating under the service performance rating table, and there is no other reasonable ground to believe that the defendant bank's new employment contract was terminated by the defendant bank's independent employment performance rating of the plaintiffs.

3. Determination on the claim for wages

As above, as long as each of the above dismissal against the plaintiffs of the defendant bank is null and void, it is due to the reasons attributable to the defendant bank, so the defendant bank is obligated to pay to the plaintiffs the amount equivalent to the wages that the plaintiffs could have received if they were to work, and there is no dispute between the parties that the plaintiffs would have been able to receive the corresponding amount of monthly average wages on the attached monthly average wages table if they were to work. Accordingly, the defendant bank is obligated to pay to the plaintiffs the amount equivalent to the corresponding amount of monthly average wages on the attached monthly average wages table from May 1, 199 to the time when they were to be reinstated.

4. Conclusion

Therefore, each of the plaintiffs' claims in this case, seeking confirmation of invalidity of each of the dismissals in this case and payment of wages after dismissal, shall be accepted in its reasoning, and since the judgment of the court of first instance is unfair with different conclusions, the judgment of the court of first instance shall be revoked and all of the plaintiffs' claims in this case shall be accepted. It is so decided as per Disposition.

Judges Lee Dong-won (Presiding Judge)