2014Guhap14716 Revocation of the Appeal Tribunal on Unfair Dismissal

○○○○ Corporation

Ma○○○

The Chairman of the National Labor Relations Commission

August 11, 2016

August 25, 2016

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff, including the part resulting from the supplementary participation.

The National Labor Relations Commission on June 26, 2014 between the Plaintiff and the Intervenor joining the Defendant (hereinafter referred to as the “ Intervenor”);

Central 2014.The decision made by a new trial as to an application for new trial of unfair dismissal shall be revoked.

1. The circumstances leading to the decision on reexamination of this case

A. Status of the parties

The Plaintiff is a company that is established on March 4, 1999 and engages in the spouse information service business. An intervenor is a person who joined the Plaintiff on August 19, 2013 and has served as a galeer.

B. On December 31, 2013, the Plaintiff issued a notice of dismissal to the Intervenor on the ground of ① lack of job ability and performance performance, ② unfaithful service and neglect of duty, ③ breach of workplace order (such as concealment of profit-making activities after breaking out and keeping the member information held at the time of being temporarily employed, retired, and ③ additional (hereinafter referred to as “instant ground for dismissal”) (i) or (v) the instant ground for dismissal, and (ii) the Plaintiff issued a notice of dismissal to the Intervenor on December 31, 2013, and the Intervenor was dismissed on the same day as the Intervenor rejected the recommendation (hereinafter referred to as “instant dismissal disposition”).

C. On January 2, 2014, an intervenor in the first inquiry tribunal of the Seoul Regional Labor Relations Commission applied for remedy to the Seoul Regional Labor Relations Commission. On February 21, 2014, the Seoul Regional Labor Relations Commission accepted the Intervenor’s request for remedy.

D. On March 19, 2014, the Plaintiff, who was dissatisfied with the aforementioned initial inquiry tribunal, filed an application for reexamination with the National Labor Relations Commission. However, on June 26, 2014, the National Labor Relations Commission dismissed the Plaintiff’s application for reexamination on the ground that the Labor Standards Act is applicable to five or more workplaces at all times, and the instant dismissal disposition is not recognized as a ground for dismissal (hereinafter “instant dismissal decision”).

[Ground of recognition] Facts without dispute, Gap evidence 1-2, Eul evidence 1-1 and the purport of the whole pleadings

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

A. The plaintiff's assertion

For the following reasons, the Plaintiff asserts that the instant decision on review should be revoked as it is unlawful.

1) A person who does not have five or more regular workers at a workplace.

A counselor working in the Plaintiff Company prepared a written contract that is not an employment contract with the Plaintiff, and the Plaintiff was paid 'basic pay' in the name of food and transportation expenses for the first three months, and thereafter received only a performance allowance according to the title (including membership, sexual intercourse, etc.) without basic pay. In addition, the counselor was working in his/her own office on the date and time and at the time of his/her own request, and was paid business income tax without being covered by the four-party insurance. Accordingly, the counselor cannot be deemed an employee under the Labor Standards Act, and the Plaintiff is not subject to the Labor Standards Act if it is excluded from this, since he/she is a workplace with less than five full-time workers. 2) The existence of the ground for dismissal.

An intervenor shall be deemed to have all the grounds for dismissal of the Plaintiff’s trade secret members, such as storing the personal information of the Plaintiff’s trade secret members in the USB joints and taking them out to the outside and embezzlement of public funds.

B. Relevant statutes

As shown in the attached Form.

C. Determination

1) Legal principles relating to whether the workplace constitutes five or more regular workers

The issue of whether a contract constitutes a worker under the Labor Standards Act is a contract for employment or a contract for work. Determination of whether a worker has a subordinate relationship depending on whether the employer provided the worker with the work for the purpose of wages in the business or workplace. Determination of whether a subordinate relationship exists shall be made by determining the content of work, and shall be subject to the rules of employment or the regulations on personnel affairs, etc., and shall be subject to considerable direction and supervision by the employer in the course of performing the work, whether the employer is bound by the employer, whether the worker is able to operate his/her business on his/her own account, such as possessing equipment, raw materials or tools of work, etc., creation of profits and losses caused by the provision of labor, etc., whether the nature of remuneration is the subject of the labor contract, whether the nature of remuneration is determined by the basic wage or fixed wage, whether the continuousness and degree of the relationship to provide labor, and whether the status of the worker is recognized as an employee under the Acts and subordinate statutes on social security system, etc., and whether the employer arbitrarily determined the basic social security system or status as an employee.

B) The facts of recognition (1) The plaintiff has employed a counselor by presenting a recruitment notice on the cruit, etc., which is a job information site (www. Incru.com). On April 7, 2014, the notice of job recruitment published in miscellaneous Korea (www. joint and several kdore.co. co. kr), stating that the notice of job recruitment published on April 7, 2014 is "regular workers: 5 days per week (working hours: 10:0 to 18: 30), basic pay either 50,00 won or 90,000 won per member's allowance, 650,000 won or more per member's allowance, and 4th insurance policy.

(2) The plaintiff and the applicant for the above recruitment notice were prepared as a counseling company contract, and the employed counselors contact with the telephone number located in the plaintiff's workplace to enter the person who found the other party to a marriage as a member, and the details of counseling each day were entered into the computer and stored the database.

(3) The counselor worked at the Plaintiff Company for 10:0 to 19:00 per week (monthly or gold) and received KRW 500,000 as a basic salary for the first three months after entering the Plaintiff Company, and thereafter, without any basic salary, received only performance allowances and gender divorce depending on the membership attraction and gender divorce performance.

On the other hand, the Plaintiff’s statement of transaction at Il-il Bank Bank Co., Ltd. (from September 1, 2013 to December 31, 2013), stating that the Plaintiff transferred 483,500 won to his/her head on November 6, 2013, and to his/her head on December 5, 2013, 483,50 won to his/her head on December 5, 2013 (the amount after his/her lease), “(4)” (a) the Plaintiff sent the Plaintiff to his/her head on November 19, 2013 to his/her head on behalf of his/her counselor, and (5) the Plaintiff did not enter the income tax at least 10 weeks in his/her basic pay for 50,000 won to his/her head on behalf of his/her head on November 19, 2013, as one of the requirements for withholding basic pay for 500,000 won.

[Grounds for Recognition] Determination of Gap's 3, 6 (including each number), Eul's 2, 3, 5, 7

If a counselor is a worker under the Labor Standards Act, there is no dispute between the parties that the Labor Standards Act is applied because the plaintiff is a worker at least five full-time workers.

Comprehensively taking account of the facts acknowledged earlier and the evidence and the purport of the entire pleadings as seen earlier, it is reasonable to view that the counselor constituted an employee under the Labor Standards Act by providing the Plaintiff with labor in a subordinate relationship for the purpose of wages. The written evidence Nos. 2 and 4-1 and 2 alone are insufficient to reverse the recognition.

① Counselors were bound by the Plaintiff’s duty, working hours, and place of service.

② In order for a counselor to receive a basic pay of KRW 500,000 per week for the purpose of attracting new members, the counselor entered the details thereof in detail, and the Plaintiff managed the results of attracting the members of the counselor and paid performance allowances.

③ In publicly announcing the recruitment of consultants, the Plaintiff presented the “basic pay of KRW 500,00 through KRW 900,000,000 for each subscription case,” as working conditions. The actual counselor received KRW 500,000 per month for three months after entry. However, without any basic pay, only the performance allowances and sexual intercourses were paid according to the membership inducement and sexual intercourse performance, but it is difficult to view that the nature as the wage, which is the remuneration for labor, is always denied because the performance bonus is paid by evaluating the quantity and quality of labor.

(4) A counselor has received all office, office supplies, business materials, and graduates, etc. necessary for performing his/her duties from the plaintiff.

⑤ Although the Plaintiff prepared a written contract for a counselor, who is not a written contract with a counselor, and filed a report on the contract for a counselor or withheld labor income tax (in fact, a counselor paid business income tax). Such circumstances are matters that the Plaintiff could arbitrarily determine to use a counselor with a superior economic position, and thus, the worker status of a counselor cannot be readily denied on this ground.

Therefore, the Labor Standards Act shall apply to the Plaintiff’s workplace that employs not less than five full-time workers at the time of the instant dismissal.

(ii) the existence of grounds for dismissal;

First, we examine whether the key issue of this case is recognized.

According to the respective descriptions and the purport of Gap evidence Nos. 11 through 13 and 19 (including the number of branches) and the whole pleadings, the intervenor is recognized as having access to the plaintiff company's internal computer network on August 21, 2012 and stored and kept the total of 145 members information in the form of JPG-type image file, and there is no evidence to prove that the intervenor leaked the above member information to the outside or intended to use it for profit-making activities.

Even if a participant disclosed the above member information from outside or intended to use it for profit-making activities, he/she was employed as a counselor on or before June 2012 and went back to the office of the plaintiff on or after August 19, 2012. Since then, there is no dispute between the parties to the case where the labor relationship between the plaintiff and the participant was interrupted on or after August 2012, and then entered the plaintiff on or after August 19, 2013. As long as the labor relationship between the plaintiff and the participant was interrupted on or after August 2012, the plaintiff cannot be dismissed as a ground for dismissal.

Therefore, the key issue of the instant case is not recognized, and there is no evidence to acknowledge the remainder of the grounds for dismissal.

3) Sub-decisions

The dismissal disposition of this case is unlawful as the ground for dismissal is not recognized, and the retrial decision of this case, which is based on this conclusion, is legitimate, and the plaintiff's assertion disputing this is without merit.

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.

Judges Park Jong-soo

Judges Park Jae-young

Judge Shee-hee

A person shall be appointed.