Plaintiff (Law Firm Han, Attorneys Jin-dae et al., Counsel for plaintiff-appellant)

The Chairman of the National Labor Relations Commission

Defendant 1 and two others (Law Firm East Sea, Attorneys Choi Won-ho et al., Counsel for the defendant-appellant)

May 11, 2016

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

On February 16, 2015, the Central Labor Relations Commission rendered a decision of reexamination on February 16, 2015 between the Plaintiff and the Intervenor joining the Defendant with respect to the case of application for reexamination of unfair dismissal (trade name 1 omitted).

1. Details of the decision on retrial;

A. The Plaintiff is a person who ordinarily employs 23 workers in the name of “(trade name omitted)” and engages in cleaning service business. The Intervenor joining the Intervenor (hereinafter “the Intervenor”) was employed by the Ulsan Atomic Energy Headquarters Co., Ltd., Ltd. (hereinafter “the Ulsan Atomic Energy Headquarters”) for the work of cleaning the first nuclear power plant of Ulsan Nuclear Power Co., Ltd. (hereinafter “○○○ Construction”).

B. On August 5, 2014, the Plaintiff participated in an open bid for the first power plant cleaning service at the Ulsan Atomic Energy Headquarters (hereinafter “instant cleaning service”). On August 27, 2014, the Plaintiff entered into a contract for services with the Ulsan Nuclear Headquarters for the contract amount of KRW 932,240,00 (including value-added tax) and the contract period from September 1, 2014 to August 31, 2015.

C. On September 1, 2014, the Plaintiff rejected the Intervenor’s application for unfair dismissal against four workers, including the Intervenor, among 23 workers employed at ○○ Construction. The Intervenor, on October 14, 2014, rejected the Intervenor’s application for unfair dismissal (Seoul Northern District Labor Relations Commission Decision 2014Da783). However, on December 15, 2014, the Gyeongbuk Regional Labor Relations Commission dismissed the Plaintiff’s application for unfair dismissal on the ground that the Plaintiff’s application for unfair dismissal was not recognized because there was no labor contract relationship between the Plaintiff and the Intervenor.

D. On December 31, 2014, the intervenors filed an application for reexamination with the National Labor Relations Commission (central 2014 fatheries 1342). On February 16, 2015, the National Labor Relations Commission acknowledged that dismissal of the intervenors made against the Intervenor on the ground that, in full view of the content of the service contract and the cleaning service specifications entered into with the Plaintiff, the Plaintiff is obligated to succeed to employment, and that such succession may be denied only in extenuating circumstances: Provided, That it is determined that the Plaintiff did not present reasonable grounds to refuse employment succession; and that the Plaintiff’s application for reexamination was revoked on September 1, 2014, and the dismissal of the Intervenor was unfair (hereinafter “instant reexamination decision”).

[Ground of recognition] Facts without dispute, Gap evidence 1-1, 2, Gap evidence 2-1, 2-2, Eul evidence 1, the purport of the whole pleadings

2. Whether the decision on the retrial of this case is lawful

A. The plaintiff's assertion

1) The Plaintiff entered into a contract with the U.S. Nuclear Headquarters only and did not enter into a labor contract with the Intervenor, and did not have agreed to succeed to the employment of ○○ Construction, the previous trustee company, and the Intervenor. Since the provisions on succession to the employment of cleaning service specifications are not a mandatory provision but a voluntary provision, it cannot be deemed that the Plaintiff has a legal obligation to succeed to the employment of the Intervenor. Nevertheless, the instant judgment accepting the Intervenor’s application for reexamination is unlawful.

2) Even if the Intervenor is obligated to succeed to the employment of the Intervenor for domestic affairs, the Plaintiff refused employment by deeming that the Intervenor was at issue, such as impairment of organization and lack of expert knowledge, during his/her work under the jurisdiction of ○○ Construction, and sent a statement of reason to the Ulsan Nuclear Headquarters on September 4, 2014. As such, the instant decision on reexamination was unlawful since the Plaintiff had justifiable grounds for refusing the Intervenor’s employment succession.

B. Relevant statutes

Labor Standards Act

Article 23 (Restriction on Dismissal, etc.)

(1) An employer shall not, without justifiable cause, dismiss, lay off, suspend, transfer a worker, reduce his/her wages, or take other disciplinary measures (hereinafter referred to as "unfair dismissal, etc.") against a worker.

(c) Fact of recognition;

1) The Ulsan Atomic Energy Headquarters has concluded a contract for services with the outsourcing service provider on a yearly or yearly basis, by holding open bids through the Public Procurement Service with regard to the cleaning services of the first power plant, second power plant, third power plant, main office plant and official housing facilities of Ulsan Atomic Energy.

2) From September 1, 2004 to August 31, 2015, the outsourcing service companies that entered into a contract with the Ulsan Atomic Energy Headquarters for the instant cleaning services are listed as follows:

From September 1, 2004 to August 31, 2005 (trade name 5 omitted) from September 1, 2004 to August 31, 2005 (trade name 5 omitted) from September 1, 2005 to August 31, 2007 (trade name 1 omitted) from September 1, 2007 to August 31, 2008 (trade name 6 omitted) from September 1, 2008 to August 31, 209 (trade name 7 omitted) from September 1, 2009 to August 31, 2010 (trade name 8 omitted) from September 1, 2010 to August 31, 2018 (trade name 4. 31, 2010 to August 31, 2012).

3) Prior to the Plaintiff, ○○ Construction performed the instant cleaning service for one year after being entrusted with it. The Intervenor 1 entered ○○ Construction on April 1, 2014 and served as a field agent until August 31, 2014. The Intervenor 2 entered around March 1997 (mutual name 2 omitted), and the Intervenor 3 entered around November 2002 (mutual name 3 omitted) and worked for ○○ Construction until August 31, 2014.

4) On September 1, 2014, the Plaintiff refused to succeed to employment for four workers, including the intervenors, among 23 workers employed at ○○ Construction. On September 4, 2014, the Plaintiff submitted to the Ulsan Nuclear Headquarters a statement of the following reasons (hereinafter “instant statement of reasons”).

B. Of the instant cleaning services specifications included in the main text, in the instant cleaning services contract and commencement, compliance with Article 10(1) of the General Specifications. However, ○○ Intervenor 1 is an on-site agent employed by the former service company and submitted the following reasons for not succeeding to employment of the participants and the Nonparty. As such, it is inappropriate for the operation policy (mutual name omitted). In particular, even though multiple fines have been formed to maximize the mutual reliance and decentralization among the employees, it is difficult to resolve the shortage of capacity as a on-site agent, which is determined as disqualified. ○○ Intervenor 2 was aware that her husband was working as an on-site operator after retirement for a long time at the U.S. Nuclear Headquarters, and that it was difficult for the Intervenor to ascertain the current status of the employees to be removed from the employment contract and employment contract of the said company, and that it is difficult for the Intervenor to ascertain the current status of the employees to be removed from the employment contract and employment contract of the said company. However, it is difficult for the Intervenor to ascertain the current status of the employees to be removed from the employment contract.

5) Meanwhile, on the other hand, the cleaning service specifications of the first nuclear power plant at the time of the public announcement of the announcement of the instant cleaning service around July 2014 (hereinafter “instant cleaning service specifications”) included in part of the service contract at the time of the public announcement of the announcement of the announcement of the announcement, include the following:

Article 10 of the General specifications Ⅱ. (Employment, Retirement, and Dismissal of Employees) (1) The other party to the contract shall, when intending to employ an employee, employ only a person who is able to perform the relevant duties, and shall maintain the employment of the said employee during the service contract period, barring any special circumstances. 3. Special specifications Ⅲ. 4. The other party to the contract shall, in principle, employ employees of the existing cleaning company in consideration of the special characteristics of the nuclear power plant when securing cleaning service workers, unless there are special circumstances in the case of securing cleaning service workers. The other party to the contract shall, in principle, employ employees of the existing cleaning company in consideration of the special characteristics of the nuclear power plant, and when it is impossible to supply and demand of neighboring residents, he/she may employ other local workers with the approval of the supervisor, and the employed worker shall maintain the employment during

[Reasons for Recognition] Evidence Nos. 2-2, Evidence Nos. 1, 2, and 3, and the purport of the whole pleadings

D. Determination

1) Whether the Plaintiff is obligated to succeed to employment of the Intervenor

In the above facts, the following circumstances are acknowledged to show the overall purport of the oral argument, namely, ① the cleaning service specifications of this case, which include part of the service contract, published at the time of the public announcement of the public announcement of the tender for the instant cleaning service, stating that “the participant shall succeed to employment, barring any special circumstances.” In light of the purport and text of the above agreement, it appears that this provision appears to stipulate the obligation to succeed to employment; ② the plaintiff submitted to the Ulsan Nuclear Energy Center, stating that “the reason why the participant does not succeed to employment even if he is required to comply with the above agreement,” and it appears to have been well known that the plaintiff was well aware that he had the obligation to comply with the above agreement; ③ the foreign main service provider, who is performing the cleaning service of this case, has succeeded to employment of the workers of the previous service company; ④ for about 17 years, the intervenor 2, the intervenor 3, who succeeded to the cleaning service of this case for about 12 years, shall not have any special reason for the plaintiff’s assertion that the intervenor is obligated to succeed to employment.

2) Whether there exists a reasonable ground to deny the Intervenor’s succession to employment

Although the Plaintiff asserts that the Intervenor was at issue with the suitability of employment, such as the impairment of organization, lack of expertise, etc. during work under the jurisdiction of ○○ Construction, there is no evidence to acknowledge this. Furthermore, even if the Plaintiff’s ground for refusal of employment as indicated in the instant ground for refusal is examined, the Plaintiff’s ground for refusal that the Intervenor 1 was an on-site agent employed by the previous service company cannot be considered as the ground for refusal of employment succession, and the ground for lack of capacity as the on-site agent is not specified in the specific act, and thus, it is insufficient to consider the lack of capacity as the on-site agent because it was impossible to resolve the problem because the Plaintiff’s failure to perform such an act was not specified. ② The ground for refusal of employment can not be said to be the ground for refusal, even if the Plaintiff requested the Plaintiff to succeed employment of the Intervenor 2 by phone to the Plaintiff, considering that the Plaintiff’s husband’s husband’s request by the Plaintiff on the part of the Intervenor 2, the Plaintiff’s refusal of employment succession cannot be concluded to be a reasonable ground for refusal of employment succession between the Intervenor 2 and the Plaintiff’s.

3) Sub-determination

Ultimately, the plaintiff has the duty to succeed to the employment of the intervenors, and the failure by the plaintiff to employ the intervenors constitutes an unfair dismissal against the intervenors. Thus, the decision of the retrial of this case is lawful on the same premise.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Park Man-man (Presiding Judge)