The legislative intent of Article 23(2) of the Labor Standards Act, which absolutely limits dismissal for a certain period of time / Whether the part of suspension of business necessary for medical care is also included in the suspension of business (affirmative), and the standard for determining whether suspension of business is necessary for medical care / Whether an employee in a temporary employment may dismiss, or refuse to conclude, this contract during the suspension of business for which medical care is required due to occupational injury, etc. (negative)

Article 23(2) of the Labor Standards Act provides that an employer shall not dismiss an employee during a period of suspension of work for medical treatment of an occupational injury or disease and for 30 days thereafter, and limits dismissal. This is to protect an employee absolutely from threat of his/her employment for the period of loss of his/her labor force and 30 days thereafter, which is necessary for the employee to recover his/her labor force due to an occupational accident.

In light of the contents and legislative purpose of the above provision, suspension of business necessary for medical care includes not only the case where it is impossible to work at work due to loss of normal labor force, but also the part of suspension of business that partially provides labor while continuing medical treatment, such as treatment, while it is difficult to provide normal labor due to partial loss of labor force. In this case, whether it is necessary to suspend business for medical care should be determined by comprehensively taking into account the objective circumstances, such as the degree of occupational injury, treatment process and method of treatment, details and intensity of work

As above, in light of the content, purport, and determination criteria of Article 23(2) of the Labor Standards Act, which absolutely limits dismissal for a certain period of time to promote the restoration of workers’ work force and maintain their livelihood, the necessity of restrictions on dismissal for the protection of workers suffering from occupational accidents is equally recognized as to temporary employees. As such, the necessity of restriction on dismissal for the protection of workers suffering from occupational accidents is equally recognized as to temporary employees. Thus, an employee in a temporary employment relationship with an employer is prohibited from dismissing, or refusing to conclude this contract

Article 23(2) of the Labor Standards Act

Supreme Court Decision 2009Da63205 Decided November 10, 201 (Gong2011Ha, 2534)

KON-based Co., Ltd. (formerly: NON-basedex, Ltd.) (Attorneys Lee Jae-ho et al., Counsel for the defendant-appellant)

The Chairman of the National Labor Relations Commission

Defendant joining the Defendant (Attorney Jin-chul et al., Counsel for defendant-appellant)

Seoul High Court Decision 2017Nu75509 decided April 6, 2018

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

The grounds of appeal are examined.

1. Judgment on the third ground for appeal

A. Article 23(2) of the Labor Standards Act limits dismissal by stipulating that an employer shall not dismiss an employee during a period of suspension of work for medical treatment of an occupational injury or disease and for thirty (30) days thereafter. This is to protect an employee absolutely from a threat of his/her position for thirty (30) days thereafter, which is necessary for an employee to restore his/her work force and for restoring his/her work force due to an occupational accident.

In light of the contents and legislative purpose of the aforementioned provision, suspension of business necessary for medical care includes not only the case where it is impossible to work at work due to the loss of normal labor force, but also the partial suspension of business that partially provides labor while continuing medical treatment, such as treatment, while it is difficult to provide normal labor due to the partial loss of labor force. In such cases, whether it is necessary to suspend business for medical care should be determined by comprehensively taking account of objective circumstances, such as the degree of occupational injury, etc., treatment process and treatment method, details and intensity of work, and worker’s attitude (see Supreme Court Decision 2009Da63205, Nov. 10, 201).

As above, in light of the content, purport, and criteria of determination, etc. of Article 23(2) of the Labor Standards Act, which absolutely limits dismissal for a certain period of time to promote the restoration of workers’ work force and maintain their livelihood, the necessity of restrictions on dismissal to protect workers suffering from occupational accidents is equally recognized as to workers for a specific period of time. Therefore, it is reasonable to deem that an employer does not dismiss a worker for a specific period of time during which medical care is required due to occupational injury, etc. during the suspension period of business

B. Review of the evidence and records duly adopted by the court below reveals the following facts.

1) On October 5, 2015, the Plaintiff entered into the instant employment contract with the Intervenor joining the Defendant (hereinafter “ Intervenor”) and determined the period of the Intervenor’s training as one to three months, and determined that the Intervenor’s employment is appropriate by comprehensively taking account of his or her aptitude, character, ability, adaptation, etc. during the period of training, the Plaintiff entered into an annual salary contract as a regular member when it is deemed appropriate for the Intervenor to be employed as a member.

2) On December 10, 2015, the Intervenor, who was assigned to the laboratory and was in the work of moving the Plaintiff’s workplace, had a recurrence of her sclimatic pains. On the following day, the Intervenor was transferred to the emergency room of the first-aid vehicle hospital in the Plaintiff’s workplace, and was discharged from the hospital to the nearest hospital in the Plaintiff’s workplace, and was diagnosed that it was necessary to consider surgery at the hospital, and was hospitalized by the morning on December 12, 2015, but worked on December 14, 2015, which is a Saturday.

3) From December 14, 2015 to December 29, 2015, the Intervenor: (a) performed the act of arranging and moving the company’s goods from December 14, 2015 to December 29, 2015; and (b) there was a serious symptoms, such as depression. The Intervenor was diagnosed on December 30, 2015 that there was a possibility of drinking in the event of an operation on the part of the Intervenor; and (c) was under medical treatment of the surgery law at the National Assembly on January 2, 2016 and January 7, 2016. Nevertheless, the Intervenor complained against the Plaintiff’s employee, and the Plaintiff transferred the Intervenor’s goods to a assembly room that did not cover hot objects.

4) Meanwhile, on January 4, 2016, the Plaintiff decided not to provide a regular employment for the Intervenor on January 13, 2016 based on the result of the evaluation of the worker’s service conducted on January 4, 2016. The Intervenor did not work for the Intervenor on January 14, 2016, and the Plaintiff notified the Intervenor of the dismissal on the same day (hereinafter “instant dismissal”).

5) On January 12, 2016, the intervenor received a diagnosis for the claim for industrial accident compensation insurance, and on the first medical examination as of January 12, 2016, the intervenor stated that the intervenor would have been able to receive medical care for eight (8) weeks since there exists a view that his/her root may decline, and that his/her activities may be performed despite pain. The intervenor filed an application for medical care and insurance benefits for industrial accidents on January 19, 2016, and on February 26, 2016, the Korea Labor Welfare Corporation decided on the medical care and insurance benefits for the intervenor including the medical care and insurance benefits for the intervenor from January 19, 2016 to March 1, 2016, as of 42 days of hospitalization, and from March 1, 2016 to 42 days of Tongwon.

C. Examining the following circumstances revealed by the facts and records as seen earlier in light of the aforementioned legal principles, there is room to deem that the Intervenor may be deemed to have partially suspended business for the medical care of occupational injury at the time of dismissal of the instant case.

1) Abstinence, which occurred on December 10, 2015, on the part of the intervenors, due to an brupt injury that occurred in the course of transporting animals to relocate the Plaintiff’s office, which is the Plaintiff’s business, is likely to constitute an occupational accident.

2) The Intervenor was diagnosed as having been hospitalized at the time of the Plaintiff’s injury, but the Intervenor continued to work after receiving medical treatment. The Intervenor was diagnosed as having the possibility of running the surgery without undergoing the surgery in the process of outpatient treatment and continued to undergo pain treatment even after receiving multiple types of outpatient treatment.

3) The Plaintiff appears to have assigned the Intervenor from the laboratory to the assembly room in consideration of the fact that the Intervenor’s return to the previous research assistant, who is a previous business, is difficult to work normally.

4) The first medical examination issued before the dismissal of the instant case contains a doctor’s opinion that the intervenor is not a type of “normal employment treatment” but rather a type of “Partial employment treatment” and that a considerable long-term outpatient treatment is expected in the future. The Korea Labor Welfare Corporation decided medical care and insurance benefits for the injury suffered by the intervenor during the period of trial.

5) Although the Intervenor appears to have lost the labor force to a considerable extent necessary for the Intervenor’s work as a research assistant due to a blick injury, it is difficult to exclude the possibility of the Intervenor’s failure to complete full-time suspension of work and to work at work during the time of the instant dismissal due to concerns that the Intervenor’s suspension of work for medical care would be disadvantageous to the original employment.

D. Nevertheless, the lower court determined as follows: (a) the Intervenor was at normal work without suspending his/her work at the time of the dismissal, or was not deemed necessary to suspend his/her business for medical care. In so doing, the lower court erred by misapprehending the legal doctrine on the restriction on dismissal under Article 23(2) of the Labor Standards Act, or by failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion

2. Conclusion

Therefore, without further proceeding to decide on the remainder of the 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

Justices Kim Jong-hee (Presiding Justice)