2016 Ghana 10057 Objection

Korea

A

2016, 5.19

June 9, 2016

1. The defendant's compulsory execution based on the payment order of Suwon District Court 2015 tea2899 against the plaintiff is denied.

2.To suspend a compulsory execution based on the original of the payment order with executory power prescribed in paragraph (1) until this judgment becomes final and conclusive;

3. The costs of lawsuit shall be borne by the defendant.

4. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Facts of recognition;

A. On June 28, 2013, the Defendant entered into a labor contract with the Plaintiff to have the term of the labor contract from July 1, 2013 to December 31, 2013, and to have it work as a employment-based key counselor, and from July 1, 2013, the Defendant served as a employment-based key counselor at the Employment Center of the Gyeonggi-gu Regional Employment and Labor Agency (hereinafter referred to as the “instant labor contract”). On December 24, 2013, the Defendant entered into a labor contract with the Plaintiff for the period from January 1, 2014 to December 31, 2014, with the former term of the labor contract to perform the same duties as the previous one (hereinafter referred to as the “instant labor contract”).

B. On December 23, 2014, the Plaintiff notified the Defendant of the termination of employment relationship as of January 1, 2015 (hereinafter “pre-notification”).

C. On January 2, 2015, the Defendant claimed that the instant notification constituted unfair dismissal and filed an application for unfair dismissal with the Gyeonggi Regional Labor Relations Commission. On February 24, 2015, the Gyeonggi Regional Labor Relations Commission dismissed the Defendant’s application for remedy on the ground that “the instant notification is not an unfair dismissal because the right to renew to the Defendant was not recognized.” On March 26, 2015, the Defendant appealed against it and filed an application for reexamination with the National Labor Relations Commission on March 26, 2015, and the National Labor Relations Commission dismissed the Defendant’s application for reexamination on the same ground as the instant initial trial tribunal on May 26, 2015.

D. After that, the Defendant filed a lawsuit against the chairperson of the Central Labor Relations Commission as Seoul Administrative Court 2015Guhap7159, but was ruled against November 12, 2015, and the above judgment became final and conclusive.

E. On December 22, 2015, the Defendant applied for a payment order seeking the payment of the pre-determination allowance for dismissal against the Plaintiff (this Court Decision 2015 tea2899, hereinafter the instant payment order), and on February 13, 2016, the said payment order was finalized.

[Ground of recognition] Unsatisfy, entry of Gap evidence 1 to 5, purport of whole pleadings.

2. Determination as to whether the advance notice of dismissal occurred

A. The defendant's assertion

The defendant asserts that the defendant should pay the pre-employment allowance because the plaintiff decided whether to extend the work performance of the defendant who is a fixed-term worker after objective evaluation, and the extension of the employment of fixed-term workers on two occasions, but the defendant dismissed the worker not later than eight days before the expiration of the work period after the extension of only one time.

B. Determination

According to the above evidence, the plaintiff did not separately determine the requirements and procedures for the renewal of the employment contract while entering into the employment contract in this case with the defendant. Rather, the plaintiff announced the plan to terminate the employment contract on December 2014 to a person aged 60 years or older, and the case where the counselor of the fixed-term employment failure who is aged 60 years or older has renewed the employment contract two times or more only once. Thus, the plaintiff cannot be said to have a legitimate expectation right for the renewal of the employment contract.

However, in the case of fixed-term workers, if there is no legitimate expectation that the labor contract will be renewed, then the period of work is terminated as a matter of course without applying a separate measure such as dismissal of the employer. Thus, even if it is notified that they refuse to renew the contract within the meaning of confirming it, it cannot be said that it is "a dismissal" under Article 23 of the Labor Standards Act.

Therefore, the payment order of this case, which sought the payment of the pre-determination allowance under the premise that the plaintiff was subject to dismissal, has no claim that caused it. Therefore, the plaintiff's assertion of objection of this case has merit.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.

Judge Kim Jae-han