[1] In a case where a fixed-term worker continues to work without a certain gap due to the repeated or renewed fixed-term employment contract, whether the total period from the first fixed-term employment contract to the last fixed-term employment contract is included in the "total period of continuous work" as prescribed by Article 4 of the Act on the Protection, etc. of Fixed-term and Part-Time Workers (affirmative in principle) / A case where a continuous or renewed fixed-term employment contract cannot be added up the period of the previous or renewed fixed-term employment contract when calculating the "total period of continuous work"

[2] The case holding that, in a case where the first contract was concluded between Gap University and Gap University to set the contract period as one month and automatically terminated when Gap University was selected as a regular worker even during the contract period, the second contract was concluded with Eul which was the final successful candidate, and the second contract term was extended to one year, and the second contract was concluded with Eul which was extended to one year, and the second contract term was terminated and the second contract was notified to Eul again and the second contract term was continued to be extended to be extended to be extended to one year, on the ground that Eul was not selected as the final successful candidate after the above procedure was applied for, and the above notification was not selected as an unfair dismissal, and thus Eul applied for an unfair dismissal request was made, the case holding that the labor relationship was interrupted at that point on the ground that the second contract was concluded by the public recruitment procedure, and that new labor relations, other than simple repetition or renewal of the existing employment contract period, were formed between Eul University and Gap University, and that the total contract period cannot be calculated to be more than two years before and after the conclusion of the second contract term.

[1] Article 4 of the Fixed-term and Part-Time Workers Act / [2] Article 4 of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers

[1] Supreme Court Decision 2017Du52153 Decided August 20, 2020, Supreme Court Decision 2018Du51201 Decided August 20, 2020 (Gong2020Ha, 1803)

Plaintiff

The Chairman of the National Labor Relations Commission

School Foundation Shipbuilding University (Law Firm, Attorneys Park Yong-sik et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2017Nu49449 decided August 16, 2017

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. The main text of Article 4(1) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (hereinafter “fixed-term Act”) provides that an employer may hire a fixed-term worker within the extent not exceeding two years (in cases of repeated renewal of a fixed-term employment contract, to the extent that the total period of continuous work does not exceed two years). Article 4(2) of the same Act provides that where an employer employs a fixed-term worker for more than two years despite the absence or extinguishment of the grounds under the proviso to Article 4(1), the fixed-term worker shall be deemed an employee who has entered into

Considering the content of the provision of the fixed-term employment law and the legislative purport of guaranteeing the status of workers by preventing abuse of a fixed-term employment contract, if a fixed-term worker continues to work without any gap, barring any special circumstance, the employment relationship shall be interrupted at the time of the first fixed-term employment contract through the last fixed-term employment contract to the last fixed-term employment contract, and the entire period from the last fixed-term employment contract to the last fixed-term employment contract shall be included in the "total period of continuous employment" as stipulated in Article 4 of the Fixed-term Employment Act: Provided, That in full view of the nature of the work subject to the fixed-term employment contract, the intentions of the parties related to the repetition or renewal of the fixed-term employment contract, the similarity of the work contents and work conditions of the previous fixed-term worker before and after the fixed-term employment contract, and the procedures and developments leading up to the termination or renewal of the fixed-term employment contract, etc., the employment relationship shall be deemed to have been formed, regardless of the continuous repetition or renewal of the existing fixed-term employment contract.

2. Review of the reasoning of the lower judgment and the record reveals the following facts.

A. The rules on the personnel management of the contract staff of the Intervenor joining the Intervenor (hereinafter referred to as the “Supplementary Intervenor”) shall, in principle, be openly employed as a contracting staff member who enters into a labor contract with the term of the contract specified, and shall be employed through the document screening and interview screening (Articles 3 and 8). The labor contract of the temporary contractual staff, who are fixed-term workers, as prescribed by Article 4(1) of the Fixed-term Work Act, may be extended only once in one year in principle (Article 11(2)). The term of the contract expires automatically upon the expiration of the contract period (Article 11(2). However, if it is necessary to continue the status of the human resources of the University of this case, and if the work attitude and work performance are excellent, the transition may be made to the inorganic contract staff member, and the transition is prescribed by Article 1

B. On June 19, 2013, the Nonparty, who was a member of the instant reserve force, voluntarily retired on June 19, 2013, immediately before the period of the reserve force training, the Intervenor entered into a first contract with the Plaintiff, who was in reserve service in the Army, with the term of the contract from June 20, 2013 to July 19, 2013 before the public recruitment procedure was implemented, and the contract is automatically terminated on the relevant day prior to the replacement with regular employees (Article 2(3)).

C. On July 1, 2013, an intervenor published a public notice of employment on public notice, and written the notice of employment position as “contractual position (one-year unit contract / maximum two years)” and the scheduled date of appointment as “ July 22, 2013,” respectively.

D. The Intervenor received the application by July 9, 2013, and the Plaintiff, including the Plaintiff, applied for each of the following: (a) the Air Force Majors of the Army Order of the Republic of Korea; and (b) the Plaintiff and the Army Compulsory Administrative Branch of the Army Order of the Republic of Korea. The Intervenor conducted an interview screening on July 16, 2013; and (c) announced the Plaintiff as the final successful applicant on July 18, 2013 (hereinafter “instant open recruitment procedure”). The instant open recruitment procedure was a method of selecting the final final successful applicant after the first document screening and the second interview on the performance assessment of duties.

E. On July 22, 2013, the Intervenor concluded a second contract with the Plaintiff by stipulating the term of the contract as “from July 22, 2013 to July 21, 2014.” On July 22, 2014, the Intervenor concluded a third contract by setting the term of the contract as “from July 22, 2014 to July 21, 2015” and setting the term of the contract as “from July 22, 2014 to July 21, 2015.”

F. On May 29, 2015, the Intervenor notified the Plaintiff that the term of the contract expires (hereinafter “instant notification”), and followed the procedure for open recruitment again. The Plaintiff, including the Plaintiff, applied for the said procedure, and the Plaintiff did not select the final successful applicant, following the examination of the documents.

G. The Plaintiff asserted that the instant notification constitutes unfair dismissal, and filed an application for remedy against unfair dismissal with the intervenor as the respondent, and the National Labor Relations Commission rendered a decision to dismiss the application for remedy on the ground that it is difficult to deem that the Plaintiff’s continuous employment period exceeds two years.

3. Examining the facts in light of the aforementioned legal principles, it can be deemed that a new employment relationship was formed between the Plaintiff and the Intervenor, not simple repetition or renewal of the existing fixed-term employment contract, upon entering into a contract on July 22, 2013 through the instant open recruitment procedure, and the employment relationship was interrupted at that time. Ultimately, when calculating the total period of continuous employment as referred to in Article 4 of the Fixed-term Employment Act, the total period of continuous employment of the Plaintiff’s continued employment does not exceed two years since the total period of continuous employment does not exceed two years after July 22, 2013. Thus, the Plaintiff cannot be deemed as a worker who entered into an employment contract without a fixed period of time pursuant to Article 4(2) of the Fixed-term Employment Act. The reasons are as follows.

A. The intervenor and the plaintiff set the contract period as one month in the first contract, but the contract is automatically terminated even during the contract period. In addition, the intervenor, in principle, selects contract workers through open employment, and the contract period is limited to a maximum of two years, and the above point was specified in the public notice in the public notice of this case. In accordance with the above public notice, the plaintiff and the intervenor applied for the public employment procedure of this case. Accordingly, the contract of this case is terminated when a full-time worker is selected as an urgent temporary contract due to a sudden reason such as a full-time death of his predecessor, and the contract relationship according to the public employment procedure of this case is determined to be the maximum of two years.

B. The disclosure recruitment procedure of the instant case appears to be a new recruitment procedure in which substantial competition has been conducted in accordance with objective and reasonable standards, and notwithstanding these procedures, it is not deemed that the intervenor had the intent to continue to employ the Plaintiff, or that the Plaintiff had the awareness or intent to have repeatedly or renewed the first contract.

C. It cannot be deemed that the termination of the first contract and the disclosure employment procedure of this case are merely a formal procedure made with intent to avoid the application of Article 4(2) of the Fixed-term Employment Act.

D. Article 14 of the Intervenor’s Rules on the Personnel Affairs of Contract Personnel separately provides for an indefinite contract transition procedure. At the time of the instant notification, the Plaintiff did not proceed with the said procedure, and the new disclosure recruitment procedure was proceeded, and the Plaintiff applied for the new examination.

4. Nevertheless, solely on the grounds indicated in its reasoning, the lower court erred by misapprehending the legal doctrine on Article 4(2) of the Fixed-term Act, thereby failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

5. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Noh Jeong-hee (Presiding Justice)