The standard for determining whether the employment relationship before and after the vacancy period can be deemed to have continued without interruption, on the premise of calculating the total period of continuous employment under Article 4 of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers, where there is a blank period in which no employment relationship exists between the contract of continuous employment.

In light of the form and content of Article 4(1) and (2) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (hereinafter “Period Act”), and the legislative intent of Article 4(1) and (2) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (hereinafter “Period Act”), if there is a blank period during which no labor relationship exists between a repeated contract, it shall be determined whether the total period of continuous employment under Article 4 of the Act can be calculated by aggregating the period of continuous employment before and after the length of the blank period and the blank period, the proportion of the blank period to the total employment period before and after the blank period, the developments leading up to the blank period, the similarity between the duty and the working conditions before and after the blank period, the method of replacing the relevant part-time worker’s duties during the blank period, the measures taken by the employer on the part of the relevant fixed-term worker, the parties’ intent

Article 4(1) and (2) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers

Supreme Court Decision 2017Du54975 Decided June 19, 2018

AbC Co., Ltd. (Law Firm AbS, Attorneys Cho Young-ro et al., Counsel for the defendant-appellant)

The Chairman of the National Labor Relations Commission

Intervenor joining the Defendant

Seoul High Court Decision 2016Nu46078 decided November 23, 2016

All appeals are dismissed. The costs of appeal are assessed against the Defendant’s Intervenor, and the remainder are assessed against the Defendant.

The grounds of appeal are examined.

1. Case history

A. The Intervenor joining the Defendant (hereinafter referred to as the “ Intervenor”) concluded a labor contract with the Plaintiff, and served as a stamp from February 14, 201 to December 31, 201. Following the conclusion of a separate contract, the Intervenor served from January 1, 2012 to February 29, 2012 without entering into a separate contract, and entered into a labor contract again, and served from March 1, 2012 to December 31, 2012.

B. On December 22, 2012, the Plaintiff notified 18 fixed-term workers, including intervenors, whose contract term expires on December 31, 2012 due to the reduction in contract volume.

C. On April 1, 2013, an intervenor entered into a new employment contract with the Plaintiff and served between April 1, 2013 and March 31, 2014, and entered into a new employment contract and served between April 1, 2013 and December 31, 2014.

D. On December 31, 2014, the Plaintiff did not renew the employment contract with the Intervenor whose term of the employment contract expires between the Plaintiff and the Intervenor.

E. The Intervenor asserted that the termination of the labor contract constitutes unfair dismissal, and applied for remedy to the Labor Relations Commission. The Regional Labor Relations Commission accepted the Intervenor’s request for remedy and the National Labor Relations Commission dismissed the Plaintiff’s request for review, and the Plaintiff filed the instant lawsuit.

2. Whether to recognize the continuity of labor relations (Ground of appeal No. 1)

A. Article 4(1) main text of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (hereinafter “ Fixed-Term Employment Act”) provides that “An employer may hire a fixed-term worker within a period not exceeding two years (where a fixed-term employment contract is renewed repeatedly, the total period of continuous employment shall not exceed two years).” The proviso to paragraph (2) provides that “If a fixed-term worker is employed for more than two years despite the absence or extinguishment of the grounds under the proviso to paragraph (1), the fixed-term worker shall be deemed an employee who has entered into an employment contract without a fixed period of time.” The legislative purport of this provision is to guarantee the status of an employee by preventing abuse of a fixed-term employment contract (see, e.g., Supreme Court Decision 2014Du45765, Nov. 10, 2016).

In light of the form and content of the provision of the fixed-term employment law, and the legislative intent, in a case where there is a blank period during which there is no labor relationship between a repeatedly concluded fixed-term employment contract, it shall be determined whether the total period of continuous employment under Article 4 of the Fixed-term Employment Act can be calculated by adding the period of continuous employment before and after the blank period to the length of the blank period and the period of total employment period before and after the blank period, the background leading up to the blank period, the situation leading up to the blank period, the similarity of the duties and working conditions before and after the blank period, the method of replacing the relevant fixed-term employment worker's duties during the blank period, the measures taken by the employer on behalf of the relevant fixed-term worker, the parties' intent or awareness for the blank period, and the repeated and renewal practices of employment contracts for other fixed-term workers, etc.

B. The lower court determined that the Intervenor cannot be deemed to have been converted to an inorganic contract worker pursuant to Article 4(2) of the Fixed-term Work Act, on the ground that the period of continuous work under Article 4 of the Fixed-Term Work Act added up the period of work performed by the Intervenor and the Plaintiff before and after the termination of the period on December 31, 2012, and the period of the employment relationship between the Intervenor and the Plaintiff was severed from January 1, 2013 to March 31, 2013 (hereinafter “instant blank period”) as of March 31, 2013 (hereinafter “instant blank period”). For this reason, the lower court determined that the Intervenor’s transition to an inorganic contract worker pursuant to Article 4(2) of the Fixed-term Work Act was not possible.

(1) The Plaintiff is an external partner established to carry out the business of painting the machinery and equipment of the Poco Co., Ltd. (hereinafter “Poco”). On December 14, 2012, the Plaintiff was holding a regular labor-management council on a quarterly basis on December 14, 2012, and the said labor-management council decided to reduce the number of employees by 30% in preparation for the performance of the Poco’s painting’s 2013 painting’s 2012. Accordingly, the Plaintiff decided not to renew the labor contract with 18 fixed-term workers including the Intervenor, whose contract term expires on December 31, 2012, and notified the Intervenor, etc. of the termination of the labor contract on December 22, 2012.

Meanwhile, the Plaintiff appears to newly employ the Intervenor on April 1, 2013 due to the Intervenor’s request by Nonparty 1, the representative of the labor-management council, even though there was no need for management to additionally employ the seals at the time of February 2013.

(2) The Plaintiff did not maintain the eligibility of the health insurance policyholder for the Intervenor during the vacancy period in the instant case. The Plaintiff conducted a health examination for on January 26, 2012, where the employment relationship with the Intervenor was maintained, and on January 3, 2014, for field workers including the Intervenor, but on February 8, 2013, conducted a health examination for 46 field workers, but did not conduct a health examination for the Intervenor. On March 20, 2013, the Plaintiff provided a separate “employment + pre-employment health examination” for the Intervenor. On April 1, 2013, the Plaintiff provided education for 8 hours to the Intervenor.

On the other hand, the intervenor retired on January 1, 2013 and received retirement allowances from February 14, 201 to December 31, 2012.

(3) At the hearing of the National Labor Relations Commission, the intervenor stated, “At the time of the termination of the labor contract, the contract period has expired on an annual basis, and if many days have elapsed, it would be another time.” Here, the phrase “on the daily basis, if many days have elapsed, and would be said to go again.” The phrase “on the daily basis, if many days have elapsed,” means that the intervenor would re-employment once on the premise that the labor contract with the intervenor was completely terminated, and cannot be deemed as a premise of continuous employment relationship. In addition, at the hearing of the above hearing, the non-party 2 of the ○○○ division stated, “on December 22, 2012, the intervenor was aware of the fact that “on the daily basis, the date on which he received the notice of dismissal from the intervenor was born,” and the Intervenor also appears to have been aware of the fact that he was notified of the dismissal as of December 22, 2012.”

(4) On April 1, 2013, the Plaintiff employed Nonparty 3 to supplement the deficient mixing of workers. On December 31, 2012, the Plaintiff did not conclude a labor contract again with 16 fixed-term workers other than the Intervenor and Nonparty 3, among fixed-term workers whose labor contract term expires.

(5) The Plaintiff cannot be deemed to have set the period of absence in order to avoid the application of Article 4(2) of the Fixed-term Act.

C. Examining the reasoning of the lower judgment in light of the foregoing legal doctrine, the lower judgment is justifiable and did not err by misapprehending the legal doctrine on the continuity of labor relations, contrary to what is alleged

3. Whether to recognize the right to renew a labor contract (ground of appeal No. 2)

A. In principle, in the case of an employee who entered into an employment contract for a fixed period, the status of the employee as an employee shall be terminated naturally upon the expiration of the fixed period, and if the employee fails to renew the employment contract, the employee shall be automatically dismissed even if the employee does not express his/her intent to refuse to renew the employment contract. However, even if the term expires in the employment contract, employment rules, collective agreement, etc. provide that the employment contract shall be renewed upon the fulfillment of certain requirements despite the expiration of the term. In full view of all the circumstances surrounding the employment relationship, including the contents of the employment contract and the motive and circumstances of the employment contract, the standards for renewal of the employment contract, etc., the establishment and circumstances of the requirements and procedures for the renewal of the employment contract, and the contents of the work performed by the employee, the trust relationship that the employment contract shall be renewed if the certain requirements are met between the parties to the employment contract, and thus, the employer’s refusal to renew the employment contract unfairly in violation of the above provision does not have any effect. In this case, the employment relationship after the expiration of the term is the same as the renewal of the previous employment contract (see, etc.).

B. On the following grounds, the lower court determined that the labor relationship between the intervenor and the Plaintiff was terminated on December 31, 2014, on the grounds that the Intervenor did not have a legitimate expectation right to renew the labor contract even though the contract period stipulated in the labor contract expired.

There is no provision regarding the procedure or requirement for the planned conversion of fixed-term workers into regular or indefinite contract workers under the labor contract, employment rules, collective agreement, etc. concluded or applied between the intervenor and the plaintiff. The intervenor and the plaintiff seems to have agreed to increase the worker's daily wage from 130,000 to 140,000 won instead of extending the labor contract. The 1 and 2 months immediately after the termination of the labor contract are less than the contract amount of the plaintiff, which are less than the contract amount of the plaintiff, it is difficult to expect that the intervenor will renew his/her labor contract. There are many cases other than the intervenor, where the renewal of the labor contract was not made for a fixed-term worker.

C. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the record, the lower court did not err by misapprehending the legal doctrine regarding the right to renew a labor contract.

4. Conclusion

The appeal by the Defendant and the Intervenor is dismissed in entirety as it is without merit, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Min You-sook (Presiding Justice)