In a case where it was impossible for a worker to be reinstated in his/her former position for reasons such as the retirement age or the expiration of the term of a labor contract while disputing the validity of dismissal by filing an application for remedy against unfair dismissal, whether there is a benefit of action to dispute a decision made by the National Labor Relations Commission dismissing the application for remedy (affirmative) / Whether the above legal principle equally applies to a case where the worker files an application for payment order of money and valuables pursuant to Article 30(3) of the Labor Standards Act (affirmative)

(A) In full view of the contents, purpose, and purport of the Labor Standards Act on the system of relief order for unfair dismissal, the significance and legal effect of an order of relief amounting to wages, etc., even in cases where it becomes impossible for a worker to restore to his/her former position during the period of dismissal due to reasons such as the termination of the term of the labor contract while disputing the validity of dismissal by filing a request for relief order for unfair dismissal, if it is necessary to receive the amount equivalent to the wages during the period of dismissal, the interests of the National Labor Relations Commission to receive the order of relief equivalent to the wages during the period of dismissal are maintained, and thus, there

① The remedy system for unfair dismissal is a system introduced to restore the original status and benefits of workers who were unfairly dismissed, i.e., the restoration of their original status and interests. Even if it is impossible for workers who were dismissed to be reinstated to their original position, it is also included in the purpose of the remedy system for unfair dismissal to confirm the fact that they are unfair dismissal and receive the amount of wages during the period of dismissal.

② It cannot be said that the restoration to the original position of a worker who was unfairly dismissed, and that the amount of wages during the period of dismissal should be paid, whichever is superior. The restoration to the original position of a worker is a measure for future labor relations, and that the amount of wages during the period of dismissal should be paid. The adjustment of legal relations arising from the uncertainty of labor relations during the period in which the worker is disputing the validity of unfair dismissal is intended to adjust the legal relations arising from the uncertainty of labor relations during the period in which the worker is disputing the validity of unfair dismissal, and thus, the amount of wages should not be paid only to the worker who can be reinstated to the original position.

③ Although an employee does not acquire an effective title through an order for remedy, it is reasonable to deem that there is a benefit to obtain a compulsory remedy order with respect to unpaid wages during the period of dismissal, and thus, the benefit to seek the cancellation of the ruling for reexamination is also recognized.

(4) The circumstance that a civil lawsuit may be instituted in order to receive the amount equivalent to the wages during the period of dismissal does not constitute grounds to deny the benefit of lawsuit.

⑤ The Supreme Court precedents that denied the interests of lawsuits on the grounds that even if an employee receives an order of remedy, it is objectively impossible to reinstate the employee in his/her former position from an objective point of view, and even if it is necessary to receive wages that have not been paid during the period of dismissal, are able to resolve them through civil procedures, rather than in line with the purport of the amendment of the Labor Standards Act that introduced an order of payment of money and valuables, thereby practically denying the effective

(B) The foregoing legal doctrine likewise applies to cases where an employee applied for payment order of money pursuant to Article 30(3) of the Labor Standards Act.

Articles 28(1) and 30(1) of the Labor Standards Act; Article 12 of the Administrative Litigation Act

Supreme Court Decision 95Nu12347 Decided December 5, 1995 (Gong1996Sang, 265) (amended) Supreme Court Decision 2001Du533 Decided April 10, 2001 (amended) Supreme Court Decision 201Du1993 (amended) Decided May 13, 201, Supreme Court Decision 2011Du3484 Decided July 26, 2012 (Amended by Presidential Decree No. 2012Du4746 (amended) Decided January 29, 2015)

Plaintiff

The Chairman of the National Labor Relations Commission

Local Autonomy Research Institute Co., Ltd. (Law Firm Jinjin, Attorneys Cho Yong-sik et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2019Nu30487 decided September 4, 2019

The judgment of the court of first instance is reversed, and the case is remanded to the Seoul Administrative Court.

The grounds of appeal are examined.

1. The summary and judgment of the court below

A. Case summary

(1) The Plaintiff entered into an employment contract with the Intervenor joining the Defendant with no fixed period of time, and was notified of dismissal from the Intervenor around December 2016 while serving as the Intervenor.

(2) On January 17, 2017, the Plaintiff filed an application for unfair dismissal with the Seoul Regional Labor Relations Commission, and subsequently revised the purport of the application by seeking money and valuables payment orders above the amount of wages in lieu of reinstatement pursuant to Article 30(3) of the Labor Standards Act (hereinafter “money and valuables payment orders”).

(3) The Seoul Regional Labor Relations Commission dismissed an application for remedy on the ground that the dismissal of the Plaintiff was justifiable, and the National Labor Relations Commission also dismissed the Plaintiff’s application for reexamination on the same ground (hereinafter “instant decision for reexamination”).

(4) On September 22, 2017, the Plaintiff filed a lawsuit seeking the revocation of the instant decision on reexamination (hereinafter “instant lawsuit”).

(5) On September 19, 2017, the Intervenor revised the rules of employment with the consent of a majority of the workers, and enforced the instant lawsuit from October 1, 2017, which was pending in the first instance court (hereinafter “amended rules of employment”). Unlike the former rules of employment, which had no provision on retirement age, the amended rules of employment provide that the date on which the employee reaches the age of 60 shall be the retirement age, and the retirement age provision shall also apply to the employee employed before the enforcement date of the amended rules of employment.

B. The lower judgment

On October 1, 2017, the enforcement date of the amended Rules of Employment, the lower court upheld the first instance judgment that dismissed the instant lawsuit, deeming that the interest in the lawsuit seeking the revocation of the instant decision on reexamination was extinguished as the Plaintiff retired ipso facto from office on October 1, 2017.

2. As to the ground of appeal on the application of the amended rules of employment

Based on its stated reasoning, the lower court determined that the amended rules of employment apply to the Plaintiff, and that the Plaintiff retired ipso facto from office as retirement age on October 1, 2017.

Examining the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine regarding disadvantageous changes to the rules of employment, exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by exceeding the bounds of the principle of free evaluation of evidence, or by

3. As to the ground of appeal on the benefit of lawsuit

A. The attitude of the previous Supreme Court precedents

In the past, the Supreme Court has denied the benefit of lawsuit on the grounds that, in cases where the employment relationship is terminated due to the resignation or retirement age of a worker who was arguing the validity of dismissal by filing a lawsuit on the dismissal request for unfair dismissal, or the expiration of the term of a labor contract, even if an employee receives an order for remedy, it is objectively impossible to reinstate him/her in the original position, and even if it is necessary to receive wages that have not been paid during the period of dismissal, it can be resolved through civil procedure (see, e.g., Supreme Court Decisions 95Nu12347, Dec. 5, 1995; 2001Du5333, Apr. 10, 201; 201Du1993, May 13, 201; 201Du3484, Jul. 26, 2012; hereinafter referred to as “previous Decision 462, Dec. 26, 2015”).

(b) the satellite to recognize the benefit of the action and the grounds therefor;

(1) In full view of the contents, purpose, and purport of the Labor Standards Act on the system of relief order for unfair dismissal, the meaning of an order of relief amounting to wages, and its legal effect, even in the case where it becomes impossible for a worker to be reinstated to his/her former position during the period of dismissal due to the reason such as the termination of the term of the labor contract, the amount equivalent to the wages during the period of dismissal would be maintained, and thus, if it is necessary for the worker to be paid the amount equivalent to the wages during the period of dismissal, the interests of the National Labor Relations Commission to receive the order of relief order for unfair dismissal are maintained, and thus, there

(A) As to the system of remedy order for unfair dismissal, the Labor Standards Act provides that “Any worker may apply for remedy to the Labor Relations Commission” (Article 28(1)); “The Labor Relations Commission shall issue an order for remedy to the employer if the dismissal is judged to be unfair after completing an inquiry pursuant to Article 29 and the dismissal is determined to be unfair, and if the dismissal is determined not to be unfair, it shall make a decision to dismiss the application for remedy” (Article 30(1)). The system of remedy order was introduced for the restoration to the original state of the worker who was unfair dismissal, i.e., the restoration of the legal status and benefits that the worker would enjoy if the worker was not unfair dismissal. Even if it is impossible for the worker who was dismissed to be reinstated to his original position, it includes the purpose of the remedy order system that is to receive the amount of wages during the period of dismissal after confirming the fact that the dismissal is unfair dismissal.

(B) The Labor Relations Commission issues an order of remedy to the effect that if the dismissal is deemed to be unfair, the dismissal shall be confirmed as unfair, and that the worker shall be reinstated to his/her original position, and that the amount equivalent to the wage that the worker could have been paid if the worker had worked normally during the period of dismissal shall not be considered as a superior remedy. It cannot be said that the restoration to his/her original position is a measure for future labor relations, and that the amount equivalent to the wage during the period of dismissal shall be paid to the worker during which the worker has asserted the validity of unfair dismissal, and that the amount equivalent to the wage during the period of dismissal shall not be paid only to the worker who can return to his/her original position, because it is intended to adjust the legal relations arising from the uncertainty of the labor relations during the period in which the worker has asserted the validity of unfair dismissal, and thus, is different from the purpose and effect.

(C) The remedy order issued by the Labor Relations Commission is an obligation under the public law to be complied with by the employer and does not directly create or modify a private legal relationship between labor and management. However, if the remedy order is issued, the employer bears the obligation under the public law to perform it, and if not implemented, the employer bears the obligation under the public law (Article 33 of the Labor Standards Act), and the remedy order, such as a person who fails to comply with the finalized remedy order, is subject to criminal punishment (Article 111 of the Labor Standards Act). Therefore, even though the employee does not acquire an effective title through the remedy order, it is reasonable to view that the benefit to seek cancellation of the remedy order is also recognized.

(D) The circumstance that a civil suit can be instituted to be paid the amount of wages during the period of dismissal does not constitute a reason to deny the interests of the suit.

The purpose of the remedy system for unfair dismissal, which is an administrative remedy procedure, is to prevent the harm caused by the division of litigation procedures, delay in the procedure, excessive burden of expenses, etc. by the ordinary methods of remedy through civil procedure, and to seek prompt, simple, economic and flexible remedy for infringement of rights (see Supreme Court Decision 96Nu5926, Feb. 14, 1997).

It is not only a civil action against a worker to receive wages that he/she has not received during the period of dismissal, but it is also consistent with the purpose of the unfair dismissal remedy system to ensure that the worker can receive confirmation of unfair dismissal and recover losses of the amount equivalent to the wages that he/she has suffered through prompt and simplified remedy procedures and administrative litigation accordingly.

(E) The previous judgment does not comply with the purpose of the amendment of the Labor Standards Act that introduced monetary payment order, but is unfair as it results in the actual denial of effective and direct remedy for a fixed-term worker.

Article 33-3(1) of the Labor Standards Act amended on January 26, 2007 (Article 30(3) of the current Labor Standards Act) provides that, in order to enhance the effectiveness of remedy for dismissal by diversification of unfair methods of remedy for dismissal, an order for remedy for dismissal may be issued to an employee to pay money or valuables equivalent to or more than the amount of wages that an employee would have received if he/she provided during the period of dismissal instead of ordering the employee to return to his/her former office if he/she does not want to return to the former office. In light of the institutional introduction of remedy that is not premised on the reinstatement of the former office, it is reasonable to recognize the benefits of the lawsuit and give the employee an opportunity to receive remedy.

If a fixed-term worker was requested to make an unfair dismissal on the ground that he/she was subject to unfair dismissal during the term of the labor contract, but a request for remedy is dismissed, there are many cases where the term of the labor contract is terminated while the lawsuit filed by the worker is pending. According to the previous judgment, it is difficult for the fixed-term worker to receive remedy. Even though it is more important to make the fixed-term worker be paid the amount of wages during the period of dismissal than the original one, the attitude of the previous judgment that did not determine the merits would result in a substantial defect in the protection of the rights of the fixed-term worker.

(2) The foregoing legal doctrine likewise applies to cases where an employee applied for payment order of money pursuant to Article 30(3) of the Labor Standards Act.

(3) On the contrary, the judgment of the same purport, including the previous decision of the National Labor Relations Commission, which determined that the interest of the lawsuit would be extinguished in the event that the employment relationship is terminated due to any other reason while contesting the validity of dismissal by filing a lawsuit against a decision on review of the Central Labor Relations Commission that dismissed the application for remedy against unfair dismissal.

C. Determination on the instant case

Examining the facts acknowledged earlier in light of the aforementioned legal doctrine, even if it was impossible for the Plaintiff to automatically retire from office on October 1, 2017 in accordance with the amended rules of employment during the proceeding of the first instance court, there is a benefit in the lawsuit seeking the revocation of the instant decision on reexamination.

Nevertheless, the lower court affirmed the first instance judgment dismissing the instant lawsuit on the grounds that the Plaintiff was retired ipso facto, and thus, it was impossible to recover the status of the previous employee or pay money and valuables instead thereof. In so doing, the lower court erred by misapprehending the legal doctrine on the benefit of the lawsuit, thereby adversely affecting the conclusion of the judgment.

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment of the court below shall be reversed. Since this case is sufficient for the Supreme Court to directly render a judgment, the judgment of the court of first instance shall be revoked, and the case shall be remanded to the first instance court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent

Justices Jo Hee-de (Presiding Justice)