(영문) 서울행정법원 2015.1.22. 선고 2014구합62609 판결

The decision made by the National Labor Relations Commission on June 11, 2014 between the plaintiff and the defendant joining the defendant (hereinafter referred to as "the intervenor") is revoked with respect to the case for which the application for retrial for unfair dismissal was filed by the National Labor Relations Commission.

Reasons

1. Details of the decision on retrial;

A. The committee established on March 22, 2010 by the Special Act on the Investigation into Force Forced Mobilization and Support for Victims, etc. of Forced Mobilization under the Plaintiff’s control of the Republic of Korea (hereinafter “the committee of this case”) is an organization established for the purpose of performing duties, such as the payment of consolation money, etc. to victims of forced mobilization of forced mobilization, and the discovery and recovery of harm to victims of forced mobilization of forced mobilization, etc.

B. On March 22, 2010, the instant commission enacted the Compulsory Mobilization Investigation Act (Act No. 10143), the term of existence was set as of December 31, 201, and extended on August 4, 2011 by the amendment of the Compulsory Mobilization Investigation Act (Act No. 10986) until December 31, 2012, and Article 19(1) proviso of the said Act provides that “If it is difficult to complete the instant commission’s operations within the period, the term may be extended only twice within six months with the consent of the National Assembly.” Accordingly, the instant commission, with the consent of the National Assembly on June 30, 2013 and June 20, 2013, extended the term of existence by December 31, 2013, respectively.

C. On July 1, 2010, the Intervenor was employed as an investigator of the instant committee, and concluded the employment contract with the Plaintiff six times from July 1, 2010 to December 31, 2010; ② from January 1, 201 to March 31, 201; ③ from April 1, 201 to December 31, 201; ④ from January 1, 201 to April 30, 201 to April 30, 201 to April 30, 201; ⑤ from May 1, 2012 to December 31, 2012 to December 31, 2012, the Plaintiff concluded the employment contract with the Plaintiff and the Intervenor during the period from December 31, 2012 to December 31, 2013 to June 6, 2013.

D. On November 28, 2013, the Plaintiff notified the Intervenor that the instant contract was terminated on December 31, 2013 as the expiration of the contract term (hereinafter “instant notification”).

E. The instant commission was extended by the amendment of the Compulsory Mobilization Investigation Act (Act No. 12132, Jun. 30, 2015) on 2013, 12, and 30. The term of office was extended by June 30, 2015. The cost estimate of the instant amendment recommended the instant commission to reduce the number of investigators by 20%, taking into account the number of cases of application, such as consolation money, etc. being predicted in the future. Accordingly, the Plaintiff did not conclude a labor contract on the ground that the number of investigators, including 50 investigators who worked for the instant commission from 50 to 47 on the remaining 47 on the ground that the results of performance assessment of duties in the first and second half of the year 2013, including 3 investigators who were retired, are lower than the results of performance assessment of duties in the first half of the year 2013.

70) A contract of employment was concluded with 40 remaining 40 persons, among the 33 persons subject to evaluation, B, and the results of work evaluation (89.5 points in the relevant department, and 70 points on the premise of an investigator: 70 points) in the second half of 2013.

F. On January 20, 2014, the Intervenor filed an application for remedy with the Seoul Regional Labor Relations Commission by asserting that the Plaintiff’s termination of the contract after the expiration of the contract term of the instant case constitutes unfair dismissal. On March 17, 2014, the Seoul Regional Labor Relations Commission dismissed the Intervenor’s application for remedy on the ground that the Intervenor’s right to renew the contract of the instant case was not recognized, and the Plaintiff’s termination of the contract after the expiration of the contract term of the instant case does not constitute unfair dismissal.

G. On March 27, 2014, the Intervenor filed an application for reexamination with the National Labor Relations Commission. On June 11, 2014, the National Labor Relations Commission revoked the said initial inquiry court on the ground that the Plaintiff’s termination of the contract after the expiration of the contract term of this case constitutes dismissal under the Labor Standards Act, as the term of the instant committee was extended by June 30, 2015 due to the amendment of the Compulsory Mobilization Investigation Act, and the Plaintiff dismissed the Intervenor upon recommendation to reduce 20% of the Committee’s human resources from the cost estimate of the instant amendment, which constitutes a layoff under Article 24 of the Labor Standards Act. Accordingly, this constitutes a dismissal dismissal under Article 24 of the Labor Standards Act, on the ground that the Plaintiff made efforts to avoid the Intervenor’s dismissal or agreed with the employee’s representative on the criteria for dismissal, etc., and thus, constitutes an unfair dismissal.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 3, Gap evidence No. 5 through 9, Eul evidence Nos. 22, 24, 25, 26 (including branch numbers), and the purport of the whole pleadings

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

A. The parties' assertion

1) The plaintiff's assertion

a) the absence of a renewed right;

① The instant commission is a temporary organization, the duration of which has been established under the Compulsory Mobilization Investigation Act from the time of its establishment; ② Article 8(3) of the Rules on the Employment of Investigators of the instant commission (hereinafter “Employment Regulations”); and Article 11 subparag. 7 of the instant contract, the Plaintiff may reflect the results of the Intervenor’s assessment of service after the expiration of the instant contract period in the determination of whether to conclude a contract again; ③ the examination of the instant case for the application for the payment of consolation benefits received by the commission as of December 31, 2013, which is the expiration date of the instant contract period, need to reduce the number of investigators, in light of the fact that there is a need to reduce the number of investigators.

(B) the reasonable ground for the refusal of renewal

Even if the intervenor's right to renew the contract is recognized, in light of the following: (a) the National Assembly amended the Force Mobilization Investigation Act on December 24, 2013 to extend the duration of the Committee until June 30, 2015; (b) the intervenor recommended to reduce the rate of 20% among the human resources of the Committee in this case; and (c) the results of the evaluation of work performance during the first half of the year 2013 were included in the lower portion among the 33 persons subject to the evaluation of the results of the evaluation of work performance during the second half of the year 2013 and the 32 persons subject to the evaluation of work performance during the second half of the year 2013, there

2) The argument of the defendant and the intervenor

A) The case of non-existence of the requirements for layoff constitutes a layoff under Article 24 of the Labor Standards Act. The Plaintiff did not make all efforts to avoid dismissal pursuant to Article 24(2) of the same Act, and the Plaintiff did not inform the representative of workers 50 days prior to the intended date of dismissal, and did not consult in good faith, and did not notify the grounds for dismissal in writing pursuant to Article 27(1) of the same Act.

(b)the existence of a renewed challenge;

① As the duration of the instant commission is extended, the Intervenor entered into a labor contract with seven times repeatedly until the instant contract is concluded. ② The instant commission extended the duration by the amendment of the Compulsory Mobilization Act on December 30, 2013 and extended by June 30, 2015, ③ there is no one to refuse the renewal of the contract among investigators belonging to the instant commission until the expiration of the instant contract. In light of the fact that there is no one to refuse the renewal of the contract, the Intervenor has the right to renew the contract.

C) the absence of reasonable grounds for rejection of renewal

① In light of the fact that the Intervenor received a three-time commendation from the instant committee on the ground that he/she had outstanding performance and loyalty in his/her duties during his/her tenure of office, and that the Intervenor received performance bonuses twice, ② the Intervenor was entrusted to the investigator with the recognition of his/her work ability, ③ the Intervenor’s performance rating in 2013 was low, and the Intervenor’s work performance rating in 2013 was difficult to adapt to his/her duties by changing his/her assignment four times, ④ the Intervenor’s prize experience and change of assignment, etc., the Intervenor’s refusal of renewal of the contract cannot be deemed appropriate evaluation solely based on the Intervenor’s performance rating in 2013.

B. Relevant provisions

It is as shown in the attached Form.

C. Determination

1) Whether the termination of the contract after the expiration of the contract term of this case constitutes a layoff under Article 24 of the Labor Standards Act

In light of the following circumstances revealed from the facts acknowledged as above, the evidence and the purport of the entire pleading, i.e., the Plaintiff merely stated that “the contract of this case is terminated on December 31, 2013 when the Plaintiff notified of this case,” and that “the contract of this case is terminated on December 31, 2013,” and ② the Plaintiff did not notify the Intervenor that he would be dismissed under Article 24 of the Labor Standards Act at the expiration of the contract of this case, the Plaintiff’s termination of the contract after the expiration of the contract of this case cannot be deemed as a layoff under Article 24 of the Labor Standards Act. Thus, the Plaintiff’s assertion

(ii)whether there is a renewed substitute;

The following circumstances revealed from the aforementioned facts as well as the overall purport of oral argument, i.e., ① the Intervenor repeatedly entered into an employment contract with the Plaintiff seven times after the extension of the term of the Committee, and ② the term of the Committee was extended by June 30, 2015 due to the amendment of the Compulsory Mobilization Investigation Act, and ③ the evaluation results of work performance may be reflected in the investigator’s re-contract determination (Evidence 5). Article 11 subparag. 7 of the Employment Regulations concluded by the Plaintiff and the Intervenor, including the instant contract, with the view to the fact that the duration of the instant contract was extended by 10.3 times before the termination of the contract, it is reasonable to conclude that the Plaintiff was not notified to the Intervenor of the extension of the term of the Committee up to 10.3 times before the termination of the contract (No. 3-1 through 7). However, the Plaintiff’s extension of the term of the Committee’s employment contract to 20 months before the termination of the contract.

3) Whether there are reasonable grounds for rejection of renewal

The following circumstances revealed from the facts recognized as above, Gap evidence Nos. 11, 12, Eul's evidence Nos. 4 through 6 (including various numbers), the overall purport of testimony and arguments of witnesses E, i.e., the committee of this case may conduct a performance evaluation for its investigators every year in accordance with Article 8 (1) of the Employment Regulations and reflect the results of the performance evaluation for its employees in determining whether to conclude a re-contract with investigators pursuant to Article 8 (3) of the Employment Regulations. However, it is not limited to the results of the performance evaluation reflected in the determination of whether to conclude a re-contract with investigators. ② From the time of the establishment of the committee of this case ( March 22, 2010) to the end of the contract of this case, the committee of this case was presented three years and nine months, and the period during which the intervenor worked for the committee of this case was presented outstanding performance evaluation every three years and six years and six months (3 years and six months through 131, 2010).

If a worker is able to lower the performance rating for the pertinent year because he/she is not aware of a new job when he/she changes his/her position, there may be cases where he/she continues to receive a low performance rating for the pertinent year, and the result of the performance rating for the pertinent year is not good, and it is difficult to accurately understand the worker's work ability only by the result of the performance rating for the pertinent year.

Therefore, this conclusion is legitimate in the retrial ruling of this case.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.