[1] The method of determining “reasonable and fair criteria” required to select a person subject to layoff under Article 24(2) of the Labor Standards Act

[2] Where Gap corporation operating a harbor loading and unloading business was dismissed for business management reasons, the case affirming the judgment below holding that dismissal of Eul et al. employees was unlawful

[1] Where an employer intends to dismiss a worker for business reasons, he/she shall set reasonable and fair criteria for dismissal pursuant to Article 24(1) through (3) of the Labor Standards Act and select a person subject to dismissal accordingly. The reasonable and fair criteria are not predetermined and fixed, but vary depending on the intensity of management crisis faced by the employer, business reasons for which the employer should be dismissed, the contents and composition of the business sector where the layoff has been executed, and the social and economic situation at the time of the implementation of the layoff. However, the detailed criteria for objective rationality and social reasonableness should be established, and the selection of a person subject to dismissal should be made by applying substantially fair and fair criteria.

[2] In a case where Gap corporation operating port loading and unloading business dismissed 27 workers including Eul for managerial reasons, the case affirming the judgment below that the dismissal of workers including Eul is unlawful on the ground that it is difficult to recognize the selection criteria itself as reasonable and fair, and that the criteria for selection of workers including Eul are not deemed to have been properly applied to the case, on the ground that the criteria for selection of workers who were employed by Gap company were unlawful, on the ground that the subjective evaluation of work attitude and the objective evaluation of work attitude, and the elements of workers are divided into subjective evaluation and objective evaluation, and the same allocation of the single target of work attitude is divided into two groups, and the scores are considerably different between the dismissed workers including Eul and the remaining workers, and the subjective evaluation of work attitude is granted.

[1] Article 24(1), (2), and (3) of the Labor Standards Act / [2] Article 24(1), (2), and (3) of the Labor Standards Act

[1] Supreme Court Decision 2001Da29452 Decided July 9, 2002 (Gong2002Ha, 1901) Supreme Court Decision 2008Du13972 Decided January 27, 201

Korea Hepson Terminal Co., Ltd. (Attorneys Son Ji-yol et al., Counsel for the defendant-appellant)

The Chairman of the National Labor Relations Commission

Attached List of Intervenor joining the Defendant is as shown in the List of Intervenor joining the Defendant (Law Firm Square, Attorneys Park Won-soo et al., Counsel for the

Seoul High Court Decision 2010Nu35731 decided April 20, 201

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

Where an employer intends to dismiss a worker for managerial reasons, he/she shall determine reasonable and fair criteria for dismissal pursuant to Article 24(1) through (3) of the Labor Standards Act, and accordingly select the person subject to dismissal. In this context, the reasonable and fair criteria should not be determined and fixed, but should vary depending on the intensity of management crisis faced by the relevant employer, managerial reasons for which layoff is to be conducted, details and composition of the business sector in which the layoff is conducted, social and economic situation at the time of the implementation of layoff (see Supreme Court Decisions 2001Da29452, Jul. 9, 2002; 2008Du13972, Jan. 27, 201). However, there should be specific criteria for objective rationality and social reasonableness, and the criteria should be applied fairly and fairly to select the person subject to dismissal.

According to the reasoning of the judgment below, the court below found the facts based on the adopted evidence and found the facts as stated in its reasoning, and found the criteria for selection of those subject to layoff of this case prepared by the plaintiff account for 1/3 each of the subjective evaluation and objective evaluation of the work attitude. The court below determined that the criteria for selection of those subject to layoff of this case are unlawful on the ground that it is difficult to recognize that the criteria themselves are reasonable and fair in light of the following circumstances in light of the following circumstances: (a) the single subject of work attitude is divided into subjective evaluation and objective evaluation; and (b) it is decided that the dismissal of the participants of this case depends on the subjective evaluation of the work attitude; (c) there is a result of the subjective evaluation of the work attitude; and (d) there is a difference between the subjective evaluation scores of the worker and the remaining workers; and (d) the subjective evaluation scores given to the intervenors are not reasonable and fair in comparison with the objective evaluation scores or the subjective evaluation scores of the worker; and (d) it does not seem that the plaintiff properly selected those subject to dismissal by applying the criteria.

In light of the above legal principles and records, the above judgment of the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles as to the criteria

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

[Attachment] List of Intervenors joining the Defendant: omitted

Justices Park Poe-dae (Presiding Justice)