2014Guhap61859 The revocation of revocation of the application for the difference payment of childcare leave benefits

A

The Seoul Regional Employment and Labor Agency Head of the Seoul Regional Labor Office

September 5, 2014

September 26, 2014

1. On April 28, 2014, the Defendant’s disposition of rejecting an application for payment of the difference in the amount of childcare leave benefits against the Plaintiff is revoked.

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff, working at the Korea Workers’ Compensation and Welfare Service, was granted childcare leave for each childbirth from January 17, 201 to January 16, 2012, and from September 3, 2012 to September 2, 2013. The Plaintiff was paid childcare leave according to the monthly ordinary wages calculated by the Defendant during the childcare leave period as follows.

A person shall be appointed.

B. On April 24, 2014, the Plaintiff submitted to the Defendant an application to the effect that “the amount of bonuses, long-term continuous service allowances, meal allowance, transportation subsidy, and customized welfare card is included in ordinary wages, and the Defendant is obligated to pay the difference between the childcare leave benefits already paid at the temporary retirement for childcare based on the fixed ordinary wage as above,” on the ground that “the Defendant is obligated to pay the difference between the childcare leave benefits paid at the temporary retirement for childcare based on the fixed ordinary wage as above.” The Defendant submitted an application to the Defendant that “the difference between the childcare leave benefits calculated based on the fixed ordinary wage and the childcare leave benefits paid to the Plaintiff, including bonuses, etc., shall be paid” (hereinafter “instant application”).

Accordingly, in order to verify the purport of the application of this case on the same day, the employee in charge of the defendant sent a written application to the certified labor affairs consultant B on behalf of the plaintiff. The purpose of the application is the property re-determination of childcare leave benefits according to the payment of the money in ordinary circumstances. If the objection form is not a legitimate request such as a request for examination or administrative litigation, I would like to confirm the corresponding defendant's opinion. Even if the person is the peremptory person under the guidelines for handling the labor-management claim, I would like to confirm the corresponding defendant's opinion."

C. On April 25, 2014, the Plaintiff submitted a document stating that “The purport of the submission of the instant application to the Defendant is not that of the request for review, and thus, the return disposition is not that of the request for review.”

Accordingly, on April 28, 2014, the Defendant rendered a notice of rejection (hereinafter referred to as the “instant disposition”) to the Plaintiff on the ground that “the Plaintiff requested the return of the instant application, thereby returning all documents. The administrative litigation is possible within 90 days from the date the original disposition became known, and within one year from the date the original disposition became known.”

D. On May 26, 2014, the Plaintiff submitted the same application to the Defendant on the same date as the instant application, and C, along with the Plaintiff, sent the written application to the Plaintiff, stating that “The Defendant’s employee in charge of the payment of childcare benefits is aware that the administrative litigation is impossible after one year has already elapsed, and that the Defendant’s notice is a plan for administrative litigation by regarding the Defendant’s disposition.” However, the Defendant processed it upon the request for examination, but on June 13, 2014, the Plaintiff was dismissed on the ground that “the appeal period was elapsed from September 16, 2013, the date of the payment of childcare benefits.”

[Ground of recognition] Facts without dispute, Gap evidence 1, 4 (including additional numbers), Eul evidence 1 to 5, and Eul evidence 8 to 16 (including additional numbers), the purport of the whole pleadings

2. Whether the lawsuit of this case is lawful

A. The defendant's assertion

The Defendant’s last payment of childcare leave benefits to the Plaintiff is a disposition on September 16, 2013, and the instant lawsuit was filed with the intention of 90 days thereafter, and thus, the instant lawsuit is unlawful, even with the lapse of the filing period.

B. Determination

(1) Article 107 of the Employment Insurance Act (amended by Act No. 12323, Jan. 21, 2014; hereinafter the same) provides that "the right to receive temporary retirement benefits expires unless the right to receive temporary retirement benefits is exercised for three years." Thus, even if the initial period of payment expires, it is necessary to confirm the defendant's position as to whether the plaintiff can re-request for temporary retirement benefits for which the period of extinctive prescription does not expire, ② Articles 62(1), 70(2), 71, 73, and 74(1) of the Employment Insurance Act; ② Articles 81, 95(1) through (4), and 97 of the Enforcement Decree of the same Act; Articles 116 and 117 of the Enforcement Rule of the Employment Insurance Act; and ④ Articles 17(1)16 and 17 of the Enforcement Rule of the same Act provide that the defendant, who seeks temporary retirement benefits under the Employment Insurance Act, can immediately seek the difference between the plaintiff's right to receive temporary retirement benefits under Article 17(16).

(2) Therefore, inasmuch as the Defendant brought the instant lawsuit as the subject matter of revocation of the instant disposition, it cannot be deemed that the period of filing the lawsuit was elapsed, counting from the previous date of payment decision on childcare leave ( September 16, 2013). Therefore, the Defendant’s above assertion is without merit.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

Bonuses, long-term continuous service allowances, meal allowance, transportation subsidy, job class allowance, and customized welfare card are fixed fixed wages to be paid periodically and uniformly during the wage calculation period, regardless of the actual number of working days or the amount received. Therefore, the Defendant is obligated to pay the difference between the childcare leave benefits including the ordinary wages and the childcare leave benefits already received, and thus, the instant disposition that rejected the aforementioned amount is unlawful.

(b) Related statutes;

It is as shown in the attached Table related statutes.

C. Determination

(1) According to the above facts of recognition, the defendant interpreted that "the plaintiff has requested the return of the application of this case" from the plaintiff, and made a request for return of the application of this case," and rejected all of the application of this case.

(2) However, the plaintiff filed the application in this case with the purport that "the defendant shall pay the difference between the childcare leave benefits calculated based on the ordinary wage, including bonus, and the childcare leave benefits paid to the plaintiff." The plaintiff's agent in charge of the defendant's employee and telephone conversations with the defendant's employee in charge of the defendant expressed his/her opinion that "the purport of the application is the property of childcare leave benefits. It is not a request for review," and "the plaintiff's opinion is not a request for review." The plaintiff's opinion is interpreted to mean that the plaintiff is not seeking the return of documents on the premise of the withdrawal of the application, but seeking a rejection disposition on the premise that the guidance of the appeal procedure is indicated.

(3) Therefore, the instant disposition is unlawful and thus revoked (the Defendant must re-examine and dispose of the instant application).

4. Conclusion

Therefore, the claim of this case is reasonable, and it is decided as per Disposition.

The presiding judge and associate judge

Judges Kim Gin-won

Judges Domination

A person shall be appointed.

A person shall be appointed.

A person shall be appointed.