The defendant's appeal is dismissed.

1. Summary of grounds for appeal;

A. From November 10, 2018, there is only a fact that the defendant, by mistake of facts or misunderstanding of legal principles, proposed that he/she will work again when he/she resumess distribution points, with the worker E who has been in the delivery business in the Dispute Resolution for the Operation of the defendant, and there is no fact that he/she dismissed E on November 11, 2018.

According to the provisions of Article 27 (1) and (2) of the Labor Standards Act, if an employer intends to dismiss a worker, the employer has the effect of notifying the grounds for dismissal and the time of dismissal in writing. Thus, the interpreter dismissed E verbally.

Even if the dismissal does not take effect, the defendant cannot be said to have the obligation to pay the pre-determination allowance to E.

Nevertheless, the judgment of the court below which found the defendant guilty of violating the Labor Standards Act by dismissing E without a prior notice of dismissal on November 11, 2018, because he did not pay E a prior notice of dismissal allowance, is erroneous in the misunderstanding of facts or in the misapprehension of legal principles.

B. The sentence imposed by the court below (the fine of 300,000 won, the suspended sentence of one year) is too unreasonable.

2. Determination

A. According to the statement of E prepared and examined lawfully by the original court on the assertion of mistake of facts or misapprehension of legal principles, the statement in the original court, and the content of the F message sent by the Defendant to E on November 12, 2018, it can be recognized that the Defendant dismissed E by telephone and did not pay the advance notice of dismissal without the advance notice of dismissal on November 11, 2018.

In addition, when an employer fails to make a pre-announcement of dismissal 30 days in accordance with the main sentence of Article 26 of the Labor Standards Act, the pre-announcement of dismissal is the money that should be paid to the employee regardless of whether the dismissal is valid, and even if the dismissal is unfair and invalid, it cannot be deemed that there is no legal ground for receiving the pre-announcement of dismissal allowance.

Supreme Court Decision 2017Da16778 Decided September 13, 2018