2012Guhap3727 Claims, etc. for remuneration

KimA

Law Firm Woo, Attorney Park In-bok

Attorney Song Young-ok, Counsel for the defendant-appellant

Gyeongnam-do

Representative of the Office of Education;

Attorney Dong-gu et al., Counsel for defendant

Attorney Lee Jae-ro

April 2, 2013

April 23, 2013

1. The defendant shall pay to the plaintiff 3,437,50 won with 5% interest per annum from September 18, 201 to May 14, 2012, and 20% interest per annum from the next day to the day of complete payment. 2. The defendant shall bear the costs of lawsuit on September 2.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order of hearing.

1. Basic facts

A. From March 1, 2009, the Plaintiff entered into a contract at the macro-B elementary school BB (hereinafter “B elementary school”) established and operated by the Defendant, and served as a fixed-term teacher (class teacher) in the above school.

B. From 209 to February 28, 201, the Plaintiff entered into a contract with the term of the study period included in the contract period. In particular, around February 201, the Plaintiff entered into a contract with the term of the contract on March 1, 201, which included the first semester contract (hereinafter “instant contract”). However, around February 201, the Plaintiff entered into a contract with the term of the first semester (hereinafter “instant contract”) with the term of the study period (from July 20, 2011 to August 28, 201). Meanwhile, the Plaintiff entered into a contract with the term of the study period as a teacher from BB elementary school as specified below.

A person shall be appointed.

C. According to the business schedule of BB elementary school in 201, the Plaintiff is responsible for the allocation of cleaning zones, lost objects, flowers, chemical powder management, and outdoor cleaning, etc. due to the 3th anniversary of the 2011.

D. The student map from BB elementary school year 201 to August 28, 201 of the same year is from July 20, 2011 to August 28, 201, and the student map distributed to BB elementary school third school students on the day before the implementation date of the domination is indicated with the Plaintiff’s cell phone number as the contact point of the emergency contact network.

E. In 2011, the Plaintiff prepared and posted a statement of legitimacy as to life, learning, etc. during the vacation on the bulletin board of the third grade class of BB school website during the summer vacation period, and the Plaintiff respondeded from parents of students about the call about the preparation for school subjects and the preparation for school trips.

F. BB elementary school did not operate an educational activity program in addition to the care class and the English camp due to the replacement of the 2 to 3th floor of the school (school building) during the summer vacation period, during the summer vacation period. The Plaintiff also did not participate in the educational activity program during the summer vacation period.

G. The Plaintiff still carried out the duty of class attendance at the third-year class in the second-year year of 201. H. BB elementary school in the second year of 201 also stated the employment scheduled period as the “public notice of contractual construction teachers at the first semester on July 19, 201 or August 31, 2011.” Article 44 of the BB elementary school rules stipulates that the school year is divided into two semesters, but the first semester is from March 1 to the date determined by the principal in consideration of the number of school days, the number of school days, the number of school holidays, and the operation of the curriculum, and the second semester shall be from the date following the end of February next year.”

[Ground of Recognition] Facts without dispute, Gap evidence 1-1 through 8, Gap evidence 2-1, 2, Gap evidence 5, 7, Gap evidence 9-2, Gap evidence 10-2 through 4, Gap evidence 11, Gap evidence 12-1 through 4, Gap evidence 14-1 through 4, and the purport of whole pleadings

2. Determination as to the claim for remuneration

A. The plaintiff's assertion

① The Plaintiff is employed as a fixed-term teacher to fill the vacancy of regular teachers. The period of temporary retirement of regular teachers temporarily laid off in the first semester in 201 was the total period of one semester in 201, ② the Gyeongnam-do Office of Education’s guidelines for the operation of fixed-term teachers, ③ the Plaintiff was in charge of the class attendance in the first semester in 201, and the Defendant was also in charge of the duties during the middle term of the instant contract in light of the following: (a) there was an agreement between the Plaintiff and the Defendant on March 1, 2011 and the middle term of the instant contract; and (b) the Defendant was obligated to pay remuneration from July 20, 2011 to August 28, 2011, which was not paid to the Plaintiff.

B. Determination

As long as the establishment of a disposal document is recognized as authentic, the court shall recognize the existence and content of the expression of intent as stated in the disposal document, unless there is any clear and acceptable reflective evidence that denies the contents of the statement (see, e.g., Supreme Court Decision 2002Da23482, Jun. 28, 2002). The above circumstance alleged by the plaintiff is insufficient to deny the probative value of the contract of this case, which is a disposal document, and to acknowledge the existence of a contract as alleged by the plaintiff, and there is no other evidence. Thus, this part of the plaintiff's assertion is without merit.

3. Determination as to claim for damages

A. The plaintiff's assertion

As a matter of course, the Plaintiff’s claim for remuneration and selective selection, that did not include the term of the instant contract in March 1, 2011 and the term of the nursing period in the instant contract were discriminatory treatment without reasonable grounds from the regular teacher who is in charge of the duties in BB elementary school on an equal basis with the Plaintiff, and thus, the Defendant asserts that the Defendant is liable to pay the amount equivalent to the remuneration that the Plaintiff could have received during the period excluded from the said contract period.

B. Determination

1) Occurrence of damages liability

Article 8 (1) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers provides that "No employer shall discriminate against workers, on the ground of their fixed-term workers, in comparison with those who have entered into an employment contract without a fixed period of time engaged in the same or similar kind of work at the relevant business or workplace." Article 2 (3) of the same Act provides that "discriminatory treatment means unfavorable treatment in terms of wages, other working conditions, etc. without any justifiable reason."

The fact that the Plaintiff performed class attendance in BB elementary school is as seen earlier, and according to the evidence No. 3, it can be acknowledged that the Plaintiff’s provision of fixed-term teachers (section 8) with respect to the service of fixed-term teachers (section 8) in the contract-based teaching guidelines for the office of education in Gyeonggi-do. Thus, the Plaintiff’s regular teachers performing class attendance in BB elementary school shall be deemed as the comparable worker and whether there is unfavorable treatment between the Plaintiff and the regular teachers without reasonable grounds.

In full view of the following circumstances that can be seen in light of the purport of the entire pleadings, the Defendant may be found to have rendered unfavorable treatment to the Plaintiff in terms of working conditions, unlike regular teachers. Therefore, the Defendant is liable to compensate the Plaintiff for damages incurred therefrom.

① Unlike regular teachers who are engaged in class attendance at BB, the Plaintiff was treated disadvantageously during the contract period as being excluded from March 1 and the vacation period.

② The Plaintiff was in charge of not only one semester in 201 but also two semesters in the second and third classes, and was in charge of providing guidance to students and their parents during the summer school period.

③ The Defendant asserts to the effect that BB elementary school did not need a fixed-term teacher because it did not operate an educational activity program during the vacation due to the work of replacing the floor for the purpose of replacing the 2 to 3th floor of the school (school building) during the summer vacation period. However, in the case of regular teachers, as in the case of fixed-term teachers, there was no need to perform special duties during the summer vacation period. Therefore, discriminatory treatment cannot be justified due to such reason.

④ A class faculty member needs to perform his/her duties such as guidance on the safety of students' life during the vacation period, research on teaching materials for the next semester, preparation for school guidance, etc. It is not different from that of a fixed-term teacher. In particular, in the case of the Plaintiff, a special person who has been working for BB elementary school since 2009.

Unless there are special circumstances, it was anticipated that the work will continue even after the first semester in 2011.

⑤ The Plaintiff had worked in BB from 1 semester in 2009 to 2012, with the exception of 2011, all of the contract period includes 3.1. and vacation period during the contract period. 6. Article 44(1) of the Enforcement Decree of the Elementary and Secondary Education Act stipulates that the beginning of the first semester is 3.1., and Article 4 of the school regulations of BB elementary school set the beginning of the first semester as 3.1.

7) The Plaintiff’s employed as a fixed-term teacher in the first semester 201 was for filling the vacancy of regular teachers, and the temporary retirement period of regular teachers temporarily laid off in the year 2011 is the total period of one semester in 2011, and the scheduled employment period was specified from March 1, 2011 to July 19, 201 or August 31, 201 when publicly announcing the employment of contractual teachers from BB elementary school in the first semester 2011. There is no reasonable ground to exclude March 1, 201 from the instant contract period.

2) Scope of damages liability

The amount of damages due to the discrimination against the plaintiff shall be the amount equivalent to the remuneration that the plaintiff could have received from March 1, 2011 and July 20, 2011 to August 28, 201, excluded from the contract term of this case, and since the total amount of remuneration of KRW 3,437,500 during the above period is no dispute between the parties, the defendant shall be liable to pay the plaintiff 3,437,50 won as damages due to the discriminatory treatment and delay damages.

3) Sub-decisions

Therefore, the defendant's 3,437,500 won and its claim shall be made by the plaintiff.

From September 18, 2011 to May 14, 2012, the delivery date of a copy of the complaint of this case, there is an obligation to pay 5% interest per annum prescribed by the Civil Act and 20% interest per annum prescribed by the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from the next day to the day of complete payment.

4. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is decided as per Disposition by admitting it.

The presiding judge, judge, Gimhae

Judges Song Jin-ho

Judge Cho Jong-jin