[1] In cases where a fixed-term employment contract of a professional English instructor appointed under the Elementary and Secondary Education Act is repeated or renewed and the total period of continuous work exceeds four years, whether such contract shall be deemed an employee who entered into an employment contract without a fixed period of time (affirmative)

[2] 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"

[3] In a case where: (a) the principal of Gap elementary school repeatedly and repeatedly renewed his/her employment contract every four years; (b) notified that his/her employment relationship is terminated to Eul who worked as a professional English instructor under the Elementary and Secondary Education Act and subordinate statutes; (c) the principal of Gap elementary school adjusted and paid retirement allowances accordingly; (d) the principal of Gap elementary school entered into a new employment contract for one-year period through the open recruitment procedure for a professional English instructor conducted by the school to which Eul belongs and continued to work as a professional English instructor; and (e) the principal of Gap elementary school notified Eul that his/her employment contract is terminated to Eul on the day when the contract expires, the case held that the employment relationship was terminated at that point on the ground that the new fixed-term employment contract was concluded between Eul and the Metropolitan City Mayor by entering into a new employment contract through the open recruitment procedure, and that a new employment relationship, other than the mere repetition or renewal of the existing fixed-term employment contract, was formed; and (e) calculation of the total period of continuous employment under Article 4 of the Act on the Protection of Fixed-Term and Part-Time Workers, etc.

[1] Article 4(1)6 and (2) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers; Article 3(3)1 of the Enforcement Decree of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers; Article 22 of the Elementary and Secondary Education; Article 42(1) and (5) of the Enforcement Decree of the Elementary and Secondary Education / [2] Article 4(1) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers / [3] Article 4(1)6 and (2) of the Act on the Fixed-Term and Part-Time Workers; Article 3(3)1 of the Enforcement Decree of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers; Article 22 of the Elementary and Secondary Education Act; Article 42(1) and (5) of the Enforcement Decree of the Elementary and

Gwangju Metropolitan City (Attorney Seo-gu et al., Counsel for the defendant-appellant)

The Chairman of the National Labor Relations Commission

Defendant 1 and one other (Attorney Park Jong-sung, Counsel for the defendant-appellant)

Daejeon High Court Decision 2016Nu13470 decided June 22, 2017

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined.

1. Case history

A. The Intervenor joining the Defendant (hereinafter “ Intervenor”) repeatedly and repeatedly renewed the employment contract at ○○○ Elementary School, while the Intervenor 2 served as a professional English instructor under the Elementary and Secondary Education Act and subordinate statutes for four years from March 1, 2010 to February 28, 2014.

B. On February 3, 2014, the head of the ○○ Elementary School notified the Intervenor 1, while the head of the △△ Elementary School notified the Intervenor 2 of the fact that “the labor relationship is terminated as of February 28, 2014” on January 17, 2014, and settled and paid retirement allowances upon the expiration of the contract period.

C. The Plaintiff, for each of the schools to which he/she belongs, proceeded to open recruitment procedures for English language instructors in 2014 (hereinafter “instant open recruitment procedures”), and through the open recruitment procedures in the instant case, the Intervenor 1 passed a final decision at ○○ Elementary School; and the Intervenor 2 passed a final decision at ○○ Elementary School, respectively. Accordingly, the Intervenor 1 entered into a labor contract with the head of ○○ Elementary School, and the Intervenor 2 continued to work as a specialized English language instructor from March 1, 2014 to February 28, 2015.

D. Since then, the head of the ○○ Elementary School and the head of the △△ Elementary School notified the intervenors on February 28, 2015 that their fixed-term employment contract will expire (hereinafter “the notice of expiration of the instant contract”).

E. The Intervenor asserted that the notice of the expiration of the term of validity of the instant case constitutes unfair dismissal, and filed a request for remedy with the Regional Labor Relations Commission to the Plaintiff as the respondent, and the National Labor Relations Commission made a decision of review accepting the request for remedy on the ground that the Intervenor is an employee who entered into an employment contract with no fixed period of time pursuant to Article 4(2) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (hereinafter “instant decision of review”).

F. The Plaintiff filed the instant lawsuit seeking the revocation of the instant decision on reexamination.

2. Determination as to the allegation in the grounds of appeal on whether the intervenor is deemed an employee who entered into an employment contract without a fixed period of time

A. (1) The main sentence 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 employ a fixed-term worker within the extent not exceeding two years (in cases of repeated renewal of a fixed-term employment contract, the total period of continuous employment does not exceed two years). Article 3(3)1 of the Enforcement Decree of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers provides that an employer may employ a fixed-term worker in excess of two years if any other statute prescribes that a fixed-term worker may be employed in a school, including an industrial-educational teacher, honorary teacher, instructor, etc., and an industrial-educational teacher, etc., who shall be assigned to a school may be assigned to take charge of education of students within the scope not exceeding two years, and that an industrial-educational teacher may be appointed to a fixed-term worker within the scope not exceeding five years pursuant to Article 4(1) of the Enforcement Decree of the Elementary and Secondary Education Act (Article 22(1)5).

Meanwhile, Article 4 (2) of the Fixed-term Workers Act provides that if an employer employs a fixed-term worker for more than two years despite the absence or extinguishment of the grounds under the proviso of paragraph (1), the fixed-term worker shall be deemed an employee who has concluded an employment contract without a fixed period of time.

In full view of the contents, structure, etc. of these provisions, an employer may use an English language instructor, who is a fixed-term worker, appointed pursuant to the Elementary and Secondary Education Act and subordinate statutes, for more than two years. However, an English language instructor whose fixed-term employment contract is repeated or renewed and whose total period of continuous work exceeds four years shall be deemed an employee who has entered into an employment contract without a fixed period of time.

2) Furthermore, considering the content of the aforementioned provision and the legislative intent of preventing abuse of a fixed-term employment contract as seen earlier, in cases where a fixed-term employment contract is repeatedly concluded or renewed and a fixed-term worker continues to work without a certain gap, barring any special circumstance, the total period from the first fixed-term employment contract to the last fixed-term employment contract shall be included in the “total period of continuous work” as prescribed in Article 4 of the Fixed-term Employment Act: Provided, That in full view of the nature of the work subject to a fixed-term employment contract, the intentions of the parties related to the repetition or renewal of a fixed-term employment contract, the similarity of the work contents, place, and working conditions of a fixed-term worker before and after a fixed-term employment contract, and the procedure or circumstances taken place in the course of the termination or renewal of a fixed-term employment contract, the employment relationship has been severed at that time, notwithstanding the continuous repeat or renewal of the existing fixed-term employment contract, and as a result, the total period of employment contract cannot be calculated before and after the end of the fixed-term employment contract.

B. According to the above facts and records, the following circumstances are revealed.

1) The intervenors, who have renewed a fixed-term employment contract on a one-year basis, have been employed as a new English language professional instructor from March 1, 2014 through a separate disclosure employment procedure after completing the existing fixed-term employment contract after four years of service period prescribed in the Enforcement Decree of the Elementary and Secondary Education Act.

2) The public recruitment procedure of this case was conducted based on the evaluation of qualification certificates, educational experience, etc., by selecting two times the number of successful examinees through the first document screening, and the final successful examinees were selected through the second examination of the preparation of teaching and learning curricula and the subsequent examination of English performance and English interview. 12 of the participants applied for the public recruitment procedure of this case at ○○○ elementary school and △△ Elementary school, respectively, and the intervenors were selected as final successful examinees following the first document screening and the second examination. Six of the final participants of the English conference, including the above two schools, who were selected through the public recruitment procedure of this case conducted by the Plaintiff, was not the existing English language lecturers whose term of a fixed-term employment contract expires. As such, the public recruitment procedure of this case applied by the intervenors can be assessed to be a new applicant who is not the existing English language lecturers, whose term of a fixed-term employment contract expires.

3) Meanwhile, in comparison with the previous one in relation to the examination of the first document in the open recruitment procedure of this case, the Plaintiff changed the qualification of a teacher and educational experience on the basis of the main evaluation criteria. However, considering various circumstances, such as the contents of the changed criteria, the content of the new recruitment criteria set by the Office of Education other than the time, the qualification criteria for a professional English instructor required by the Decree of the Elementary and Secondary Education, the importance of the training experience in accordance with the characteristics of the professional English instructor, and other circumstances, it is difficult to deem that the Plaintiff changed the criteria with the intent to continue to employ an existing professional English instructor.

4) At the time of the public recruitment process of the instant case, some of the existing English language lecturers were to apply for schools other than the schools in which they had worked as part of a fixed-term employment contract. Notwithstanding the public recruitment procedure of the instant case, the previous English language lecturers, including the intervenors, do not seem to have been aware or expressed that the previous fixed-term employment contract was repeated or renewed.

5) Taking account of the aforementioned circumstances, it cannot be deemed that the termination procedure of the previous fixed-term employment contract concluded against the intervenors before and after March 1, 2014 and the disclosure and recruitment procedure of the instant case are merely a formal procedure made with the intent to avoid the application of Article 4(2) of the Fixed-Term Employment Act.

C. Examining these circumstances in light of the legal principles as seen earlier, it can be evaluated that a new fixed-term employment contract was concluded on March 1, 2014 by entering into a new fixed-term employment contract, which is not simple repetition or renewal of the existing fixed-term employment contract between the Intervenor and the Plaintiff, and the employment relationship was terminated 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 contract cannot be added up to the period of continuous employment before and after March 1, 2014, and thus, the total period of continuous employment by the Intervenor does not exceed four years. Thus, it cannot be said that the Intervenor was an employee who entered into an employment contract without a fixed period of time pursuant to Article 4(2) of the Fixed-term Employment Act.

D. Nevertheless, the lower court erred by misapprehending the legal doctrine on Article 4(2) of the Fixed-Term Workers Act, thereby adversely affecting the conclusion of the judgment, on the grounds as indicated in its reasoning, on the grounds that the employment relationship before and after the disclosure of employment cannot be deemed to have been severed solely on the ground that the mere fact that the employment relationship before and after the disclosure of employment was practically interrupted, and thus, the Intervenor, who is a fixed-term worker, continued to work for more than four years and ought to be regarded as an employee who entered into an employment contract without a fixed period of time pursuant to Article 4(2)

3. Conclusion

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 Kim Seon-soo (Presiding Justice)