Plaintiff

The Chairman of the National Labor Relations Commission

Bamantec Co., Ltd. (Attorney Cho Jong-tae, Counsel for the defendant-appellant)

May 21, 2015

Seoul Administrative Court Decision 2014Guhap17241 decided January 22, 2015

1. The Intervenor’s appeal is dismissed.

2. The costs of appeal are borne by the Intervenor joining the Defendant.

1. Purport of claim

The decision made by the National Labor Relations Commission on August 5, 2014 between the Plaintiff and the Intervenor to the Intervenor (hereinafter referred to as the “ Intervenor”) is revoked as to the case for which the application for retrial against unfair dismissal was filed by the National Labor Relations Commission.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Quotation of the first instance judgment

The reasoning of this court’s reasoning is as follows: (a) the second part of the judgment of the court of first instance (“Defendant 28, 2014.1.28”; and (b) the reasoning of the judgment of the court of first instance is the same as that of the judgment of the court of first instance, except where the intervenor addss a judgment on the matters asserted in the court of first instance pursuant to Article 8(2) of the Administrative Litigation Act and the main part of Article 420 of the Civil Procedure Act.

2. Determination on the additional argument in the trial

A. Intervenor’s assertion

Even if the refusal to conclude this contract upon the expiration of the period of time is deemed as dismissal under the Labor Standards Act, Article 27 of the Labor Standards Act does not apply to the temporary employees in light of the purpose and purpose of the contract for time, and Article 17(4) of the Rules of Employment of the Intervenor does not apply to the temporary employees who are not the temporary employees, and Article 23(3) of the Rules of Employment of the Intervenor’s collective agreement merely provides that the Intervenor’s oral notification of the grounds for refusal to conclude this contract to the Plaintiff is lawful, since the Intervenor notified the Plaintiff of the grounds for refusal to conclude this

B. Determination

1) Article 27 of the Labor Standards Act provides, “Where an employer intends to dismiss a worker, the employer shall be notified in writing of the grounds for and timing of the dismissal.” This purport is to ensure that the employer is careful in dismissing the worker through written notification of the grounds for dismissal, etc., and that the dispute surrounding the dismissal can be settled appropriately and easily after the dismissal by clarifying the existence, time and reason of the dismissal, and that the worker can respond appropriately to the dismissal. Therefore, when the employer notifies in writing the employer of the grounds for dismissal, it is necessary to clearly understand the grounds for the dismissal in the location of the worker, and in particular, it is sufficient that the employer should state the specific facts or irregularities that form the substantial grounds for the dismissal, and that it is sufficient that the person subject to disciplinary action only requires the provisions of the collective agreement or rules of employment in violation (see Supreme Court Decision 2011Da42324, Oct. 27, 2011).

In addition, the dismissal of a worker in the probationary period or the refusal of the contract upon the expiration of the probationary period is an exercise of the right of cancellation reserved against the employer. In light of the purpose and purpose of the probationary system that intends to observe and determine the business eligibility of the worker in question, such as business ability, qualities, personal effects, and sincerity, it is recognized that it is larger than ordinary dismissal, and even in this case, it is recognized that there exists an objective reasonable reason in terms of social norms (see Supreme Court Decision 2002Da62432, Feb. 24, 2006). Thus, even if a worker in the probationary period refuses the conclusion of this contract, it is reasonable to deem that Article 17(4) of the Rules of Employment or Article 23(3) of the collective agreement of the defendant provided for the same purport.

2) The fact that the Intervenor entered into an employment contract between December 30, 2013 and December 29, 2014 with the term of the contract from December 30, 2013 to January 29, 2014 that “if there is no big defect after evaluating work performance during the starting period of one month, it shall enter into a regular employment contract.” Thus, the Intervenor’s refusal of the conclusion of this contract against the Plaintiff should be notified in writing of the grounds for refusal of the actual conclusion of this contract in accordance with Article 27 of the Labor Standards Act, Articles 17(4) and 23(3) of the collective agreement of the Rules of Employment. Therefore, the Intervenor’s assertion on different premise is without merit (the Intervenor’s dismissal, which was submitted after the date of closing the argument at the court of first instance, should not be specifically stated in the Intervenor’s dismissal, and the Intervenor’s oral notification of the grounds for refusal to enter into the contract into the contract with the Plaintiff in writing, stating the grounds for refusal to the Plaintiff in writing as the notice of dismissal.

3. Conclusion

Therefore, the plaintiff's claim is justified, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed. It is so decided as per Disposition.

Judges Yellow-Jil (Presiding Judge)