2019Guhap64167 Revocation of the Request for Remedy against Unfair Dismissal

A Stock Company

The Chairman of the National Labor Relations Commission

B

April 10, 2020

May 8, 2020

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit are assessed against the Plaintiff, including the part resulting from the supplementary participation.

The decision of review made by the National Labor Relations Commission on March 25, 2019 between the Plaintiff and the Intervenor joining the Defendant (hereinafter referred to as the “ Intervenor”) on the application for remedy for unfair dismissal shall be revoked.

1. Details of the decision on retrial;

A. Around February 2018, the Plaintiff: (a) was a corporation engaged in clothing export and import business, cosmetics export and import business, wholesale and retail business, etc.; and (b) requested D Co., Ltd. (hereinafter referred to as “HH-rating Business”) to employ human resources to take charge of online cosmetic business marketing. From November 2017 to E, the Intervenor requested the instant H-rating Business to find jobs around February 2018 while working for cosmetic marketing and export business.

B. On June 1, 2018, the Plaintiff sent to the Intervenor an e-mail stating, “As the result of this confirmation by the low-income personnel team to the Ministry of Labor, the Plaintiff did not prepare a job completion or a labor contract that comes at the time of legal interpretation, so the notice of dismissal for the request does not fall under you. I have the opportunity to notify the Intervenor of his failure to accept his job support.”

C. On June 1, 2018, the Intervenor asserted that the Plaintiff revoked the employment unfairly, and filed an application for remedy with the Seoul Regional Labor Relations Commission. The Seoul Regional Labor Relations Commission decided the employment relationship between the Plaintiff and the Intervenor on November 8, 2018, and established the employment relationship between the Intervenor and the Intervenor, the revocation of the appointment of the Intervenor unilaterally constitutes dismissal, and the Plaintiff violated Article 27 of the Labor Standards Act, on the ground that the Plaintiff did not notify the Intervenor in writing of the reason and the time of the dismissal, and thus, the Plaintiff was in violation of Article 27 of the Labor Standards Act (F).

D. On December 19, 2018, the Plaintiff appealed and filed an application for reexamination with the National Labor Relations Commission. However, on March 25, 2019, the National Labor Relations Commission rendered a decision dismissing the Plaintiff’s application for reexamination on the ground that the Plaintiff revoked the appointment without justifiable grounds (C; hereinafter “instant decision for reexamination”).

[Ground of recognition] Facts without dispute, Gap evidence 1 to 3, Eul evidence 6 and 9, the purport of the whole pleadings

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

A. The plaintiff's assertion

1) The Plaintiff was engaged in the process of coordinating the terms and conditions of employment with the Intervenor through the instant Hague-rating company, and did not have made a specific and conclusive offer to employ the intervenors. Therefore, the labor relationship between the Plaintiff and the Intervenor was not established.

2) Even if a labor relationship between the Plaintiff and the Intervenor was established, the Plaintiff’s notice of June 1, 2018 does not constitute dismissal under the Labor Standards Act for the following reasons: (i) the right to termination was reserved before the time of the regular issuance to the Plaintiff; and (ii) the Plaintiff exercised the right to termination of a labor contract under an agreement with the Intervenor to terminate the labor contract and to conduct consultation on the conclusion of a consulting contract or a new labor contract, by which the grounds for disqualification were revealed, such as insufficient business capacity of the Intervenor and intimidation against the Plaintiff’s employees.

(b) Fact of recognition;

1) On March 2, 2018, the head of the G of the instant hedgeting company sent e-mail to the intervenors and proposed the duties of the head of the business division in charge of the Plaintiff’s marketing of the cosmetics business. On the same day, the Intervenor sent a resume with a positive intent to G. On March 8, 2018, G notified the intervenors of the interview schedule with the Plaintiff. On March 9, 2018 and March 21, 2018, the Intervenor notified the intervenors of the interview schedule with the Plaintiff.

2) At around 13:13 on March 23, 2018, H sent to G a text message stating that “BN” is “10 million won (including sales and brand consignment development), 5-10% (including all brand business unit directors) of performance earnings according to the business area, 200: C/C head of the C/C/C/C’s M/C’s M/C’s business operation (hereinafter “C/C”) appointment and Stockholm options payment at the later separation of subsidiaries, 4th regular monthly and regular paid leave, corporate card, correspondence, fuel discount and payment, 3th regular brand discount and payment, 100:6 first to June, 2018, and the principal.” On March 23, 2018, H sent a text message stating that “I will deliver to G.C. 16th of 200,” and that “I will receive 3th of e-mail from the 15th of e-mail participants.”

3) An intervenor retired from E on April 30, 2018, the Intervenor retired from the company.

4) On May 15, 2018, H sent a text message to the J director of the Hague-rating company of the instant case, stating that “I will make it possible for the Intervenor to yet adjust the low-slow side membership to the second half? At present, the Intervenor would be at the latest and the practical progress of the cosmetic work, and the Intervenor would be in an inferior situation. However, I sent the text message to the principal, “I will request the delivery of the message.”

5) An intervenor conducted an interview with the Plaintiff H, I, and May 16, 2018, and made a telephone call on May 19, 2018.

6) On May 24, 2018, the Plaintiff’s K division sent an e-mail pertaining to the terms and conditions of the contract to the intervenors on May 24, 2018. The contents of the e-mail were as follows: “Annual salary of KRW 60 million (monthly salary of KRW 5 million): (Total Sales - Agency Fee of KRW - Sales Liability Amount of KRW 2 billion) X payment rate of KRW 1.5%, special performance rate of KRW 1.5%: Payment according to the company’s business performance and payment according to the company’s management performance, and subsidies of KRW 20 to KRW 3 million per month of liquor. On the same day, the Intervenor responded to the purport that the annual salary amount of the said e-mail was not erroneous by phone to K on the same day, and that K was an internal decision already made.

7) On May 30, 2018, the Intervenor was contacted to the effect that the Plaintiff had not recruited the Intervenor through the instant Hague-rating Company. Accordingly, on May 31, 2018, the Intervenor demanded the Intervenor to clarify whether to employ the Intervenor in currency with H. On May 31, 2018. On May 31, 2018, H sent a text message stating, “I would like to reply to the Intervenor that the Intervenor would be able to be able to dived at the low level if I would like to give consultation and performance to the overseas business for the low-income company, and the price for such consultation.” On May 31, 2018, the Intervenor sent the text message stating that “The Intervenor would develop basic salary 100 million won, 15-100%, 100-300%, and 100-300-300-300-300-300-300-00.

[Grounds for recognition] The descriptions of Gap evidence Nos. 4, 5, Eul evidence Nos. 1 to 9, and the purport of the whole pleadings

C. Determination

1) Whether labor relations are established

A labor contract refers to a contract entered into for the purpose of providing labor to an employer and paying wages to an employer (Article 2(1)4 of the Labor Standards Act). The recruitment of an employer constitutes an incentive for subscription for a labor contract. The recruitment of an employee constitutes an offer for a labor contract, and the acceptance of a recruitment procedure constitutes an offer for a labor contract, and if an employer has notified an employee of final passing and employment through screening procedures, an employer shall be deemed to have expressed his/her intent to accept a labor contract. The same applies to the so-called “in-called “in-employment” decision-making by an employer prior to a considerable period of time prior to the provision of practical labor and payment of wages. Therefore, a labor contract relationship is established between an employer and an employee by providing notice of the recruitment notice, and then the revocation of the employment by an employer is practically dismissed (see Supreme Court Decision 2000Da25910, Dec. 10, 202).

Comprehensively taking account of the facts acknowledged earlier and the following circumstances revealed by the purport of the entire arguments and evidence revealed earlier, it is reasonable to deem that the labor relationship was established between the Plaintiff and the Intervenor on March 23, 2018 by making an offer and consent of the labor contract, as the Intervenor was subject to an interview with the Plaintiff, and the Plaintiff thereafter notified the Intervenor of his/her intent to employ the Intervenor, externally and objectively.

A) On March 23, 2018, H followed two interviews with the Intervenor, and on March 23, 2018, through the Hague-Hunting Enterprise, determined and delivered the Intervenor with specific working conditions, including annual salary, incentives, positions and positions, leave, cost support, vehicle support, and the timing of desiring entry. The Intervenor, through the instant Hague-Hunting Enterprise, specifically specified the desired date of entry while delivering to the Intervenor the intent to receive such working conditions. This can be deemed as having been given an offer and consent regarding the labor contract under the condition that the major working conditions are set.

B) There was an experience in engaging in the recruitment of workers at the request of the Plaintiff. The instant hedging company received the Intervenor’s answer to the Intervenor to deliver and accept the working conditions determined and notified by H, the representative director of the Plaintiff, as is, to the Intervenor, and then did not raise any objection thereto at the time of the Plaintiff. Therefore, it is difficult to deem that there was any error or misunderstanding in using the expression “final passing” while delivering the working conditions presented by H to the Intervenor.

C) At the time of requesting the recruitment of the original H-rating company of this case, the Plaintiff presented the duties and qualification requirements related to overseas marketing of the cosmetics business, and also indicated that the duties of the pertinent department are overall when employed as the position of the head of the business department. As such, the Intervenor was specifically provided with information on the Intervenor’s work experience necessary for supporting the Plaintiff or the work to be assigned to the Plaintiff in the future. Meanwhile, even in the resume submitted by the Intervenor, the details of the Intervenor’s work experience are specifically stated in the Intervenor’s work experience, and the Plaintiff appears to have been given an opportunity to sufficiently verify the Intervenor’s work experience and job experience through interview. Accordingly, at March 23, 2018, the details to be provided by the Intervenor were specified to the extent that it does not interfere with the establishment of the labor contract.

D) On May 24, 2018, the Plaintiff presented a modified contract term, including annual salary of KRW 60 million, to the Intervenor on May 24, 2018. However, in light of the Intervenor’s response, the said contract term appears to have been unilaterally determined without going through any adjustment or agreement process with the Intervenor. Therefore, it is reasonable to view that working conditions, such as annual salary of KRW 100,000, which the Plaintiff presented and accepted by the Intervenor, are already determined by the agreement between the Plaintiff and the Intervenor without promising the future negotiation process.

2) Whether it constitutes dismissal under the Labor Standards Act

A) If a labor contract relationship was established by the employer’s notice of the recruitment process, the Labor Standards Act applies from the time of the formation of the contract, and thus, practically, the revocation of the recruitment process falling under dismissal is subject to restrictions pursuant to Article 23(1) or 24 of the Labor Standards Act. In addition, barring special circumstances, such as where grounds for disqualification are determined in the employment notice, employment notice, internal employment notice, etc., or where the employer determined that the employee should be employed for a fixed period from the beginning to the beginning and confirmed the work ability, etc., the mere fact that the employer determined the recruitment of the employee and did not have yet to provide actual labor can not be deemed to have established a labor contract,

B) In light of the following circumstances revealed by the evidence and the purport of the entire pleadings as seen earlier, it is insufficient to acknowledge that the evidence presented by the Plaintiff alone was on the condition that the Plaintiff verified the future business capacity while employing the Intervenor or determined other grounds for disqualification, and there is no other evidence to acknowledge this otherwise. Therefore, it cannot be deemed that the Plaintiff reserved the right to cancel the labor contract with the Intervenor.

① On March 23, 2018, H notified the intervenors of the Plaintiff’s use of Maspact products that were already offered to the intervenors through the instant Hague-rating company, and on the same day, it is recognized that the Intervenor sent the Masp bags to H through the instant Hague-rating company on the same day. However, at the time of requesting the above Masp bags, the Plaintiff also discussed the issue and scope of vehicle support to the Intervenor by notifying G of the specific Intervenor’s working conditions. However, there is no circumstance to deem that the Plaintiff assessed or rejected the Intervenor’s use Masp bags.

② The Intervenor did not support the Plaintiff as a new employee, but was engaged in the relevant business for about 13 years. Therefore, it seems that there is no need to establish a separate procedure to verify the Intervenor’s business capacity in addition to the Plaintiff’s conduct of interview two times in the status of being provided with detailed information about the Intervenor’s existing experience.

C) On May 31, 2018, the Plaintiff requested the Intervenor to provide consultation on the performance of overseas business and the price for such consultation. It is insufficient to recognize that the labor contract established between the Plaintiff and the Intervenor, as alleged by the Plaintiff, was terminated on May 31, 2018, solely on the ground that the Intervenor respondeded to the pertinent content, and that it is difficult for the Intervenor to make his best to comply with the demands.” Rather, it is difficult to recognize that the labor contract established between the Plaintiff and the Intervenor, as alleged by the Plaintiff, was agreed upon on May 31, 2018. Rather, the Intervenor presented the same basic class 10 million won and incentives5-10% of the working conditions presented by the Plaintiff, and the overseas business related to the cosmetics business as mentioned by the Intervenor is practically identical to the duties provided by the existing labor contract. In the circumstances where the Plaintiff reverses the existing intention or employment conditions from May 24, 2018, the Intervenor unilaterally expressed his/her intention to dismiss the labor contract based on the Plaintiff’s response to the demand of the Plaintiff, and fails to terminate the existing labor contract.

D. Sub-committee

Although a labor relationship was established between the Plaintiff and the Intervenor, the Plaintiff did not notify the grounds for dismissal and the time of dismissal in writing as a result of unilaterally cancelling employment, and thus, it is unreasonable for the Plaintiff to dismiss the Plaintiff’s failure to report on June 1, 2018. The instant decision on reexamination, which was rendered on the same premise, is lawful.

3. Conclusion

The plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

judges of the presiding judge;

Judges Park Nam-jin

Judges Cho Gyeong-soo

1) However, an employer shall clearly state wages, contractual work hours, holidays, annual paid leaves, etc. for workers when concluding an employment contract (Article 17(1) of the Labor Standards Act), and shall deliver a document specifying the constituent items, calculation method, payment method, contractual work hours, holidays, and annual paid leave (Article 17(2) of the Labor Standards Act). The employer is subject to fines in cases of violations (Article 114 subparag. 1 of the Labor Standards Act). Such employer’s obligation does not affect the establishment of an employment contract.