2020 Ghana 44237 Damage (State)

A

1. Korea;

2. B

September 23, 2020

October 14, 2020

1. All of the Plaintiff’s claims against the Defendants are dismissed. 2. Costs of lawsuit are assessed against the Plaintiff.

The defendants jointly and severally pay to the plaintiff 717,150 won and 12% interest per annum from the day following the day when the copy of the complaint of this case was served to the defendants last.

1. The plaintiff's assertion

(1) The Plaintiff is operating a sanatorium for older persons, which is called "D Medical Care Center" in the City of the Government of the Republic of Korea, and the Defendant B is an employee who had worked as a caregiver at the Plaintiff's sanatorium for older persons for one year from August 1, 2017 to July 31, 2018 after entering into a labor contract with the Plaintiff.

(2) On June 21, 2018, at a meeting of the representative of the workplace within the jurisdiction of the Defendant’s Republic of Korea, the Council of the Local Employment and Labor Agency under the Defendant’s Republic of Korea (hereinafter “Council of the Republic of Korea”) provided education that “The Labor Standards Act was amended and the annual paid leave has increased from 15 days to 26 days, and if so, the annual paid leave will be thoroughly implemented and criminal punishment will be imposed.”

(3) Around August 2018, Defendant B submitted a petition to the Office of Government Branch demanding the Plaintiff to pay the unused annual allowance to the Plaintiff, and the Plaintiff was summoned to the Office of Government Branch and was investigated by the labor inspector. The labor inspector also presented the “Revised Labor Standards Act explanatory materials” issued by the Defendant Republic of Korea, and the law was revised, and the annual rent has increased to 26 days, and thus, the remaining 11 days have not been paid as allowances is in violation of the Labor Standards Act, and thus, the Plaintiff was subject to criminal punishment. The Plaintiff, without any choice, paid the Plaintiff KRW 717,150 for the unused annual allowance for 11 minutes on November 13, 2018.

(4) However, the annual paid leave under the labor contract that the Plaintiff entered into with Defendant B was 15 days based on Article 60(1) of the Labor Standards Act, and the Defendant B did not have any previous annual paid leave since all it was implemented. Article 60(1) of the Labor Standards Act on annual paid leave does not have any amendments so far. Article 60(1) and Article 60(2) of the Labor Standards Act on a long-term worker who has been employed for less than one year cannot be combined with each other. Article 60(3) of the former Labor Standards Act on a long-term worker who has been employed for the first year is not a clause that is practically well-known.

(5) Nevertheless, Defendant Republic of Korea has developed the Labor Standards Act by putting its nature into one of the two provisions of Article 60(1) and Article 60(2) of the other Labor Standards Act and implementing the revised Labor Standards Act after producing “the revised Labor Standards Act explanatory materials” with the content that the paid leave for work for the first one year is maximum of 26 days. As such, Defendant Republic of Korea has suffered damages for tort.

As a result, Defendant B is jointly obligated to pay the Plaintiff KRW 717,150,000 for the annual unused annual allowance for 11-day, as a return of unjust enrichment.

2. Relevant statutes;

(2) An employer shall grant a paid leave of 15 days to any worker who has worked for not less than 80 percent of a year. (2) An employer shall grant a paid leave of 15 days to any worker who has worked for not less than 80 percent of a year. (3) through (4) through (7) Article 60 (Amended by Act No. 1510, Nov. 28, 2017) of the former Labor Standards Act No. 1510, Nov. 28, 2017> (2) An employer shall grant a paid leave of 15 days to any worker who has worked for not less than 80 percent of a year.

3. Determination

Article 1(1) of the former Labor Standards Act (amended by Act No. 15108, Nov. 28, 2017) (amended by Act No. 15108, Nov. 28, 201) recognizes 15-day paid leave for workers who work for at least 80 percent of a year. Paragraph (2) recognizes 1-day paid leave for workers who work for less than one year or for less than 80 percent of a year. Paragraph (3) stipulates that 15-day paid leave including the paid leave under paragraph (2) shall be granted to those who work for the first year, and the number of days of paid leave shall be deducted from 15-day paid leave if those workers who work for less than one year and less than two years, but if all or part of the 11-day paid leave under paragraph (2) has already been used, it was less than 15-day paid leave.

However, the amended Labor Standards Act (amended by Act No. 158, Nov. 28, 2017; effective May 29, 2018) deleted Article 60(3) of the former Labor Standards Act, which deducts paid leave generated by an employee who has worked for less than the first one year from 15 days of paid leave for less than the first one year, thereby allowing the full recognition of 11 days of paid leave per year pursuant to Article 60(2) and 15 days of paid leave generated by an employee who has worked for more than 1 year and less than 2 years pursuant to Article 1(1). The reason for the revision of the Labor Standards Act is to improve the said Act by failing to guarantee paid leave for an employee who has worked for less than 2 years but less than 2 years, so it is possible to apply both 15 days of paid leave under paragraph (1) and 11 days of paid leave under paragraph (2) generated by an employee who has worked for less than 1 year and less than 1 year to 15 days of paid leave per year (26 days).

In addition, such interpretation ought to be deemed to be equally applied to fixed-term workers who work for one year as in the instant case as in Defendant B. This is because the necessity to settle the remuneration for their work is recognized as the expiry date of their work period. Such interpretation also accords with the purport of the existing Supreme Court Decision 2014Da23296, 232302 Decided May 17, 2017, the right to use annual leave or the right to claim annual leave allowances naturally arises when an employee provides his/her work while meeting the work rate in the previous year pursuant to Article 60(1) of the Labor Standards Act. As such, the right to use annual leave is not the pertinent year for which annual leave is to be used but the remuneration for his/her work for the previous year (see Supreme Court Decision 2014Da23296, 2302, May 17, 201), which conforms with the purport of the previous Supreme Court Decision 203Da4859, May 27, 2005).

Although Supreme Court Decision 2016Da48297 Decided June 28, 2018 held that the right to use annual leave shall take place on the day after completing the work for the year of the preceding year unless otherwise specifically provided, barring any other special circumstances, the right to use annual leave shall take effect on the day after completing the work for the year of the preceding year. Thus, in a case where the employment relationship is terminated due to retirement, etc., the right to use annual leave shall not be claimed as compensation for the right to use annual leave. However, this decision is different from this case concerning annual leave as compensation for the work for the year in which the retirement age reaches the retirement age. If the above decision is applied uniformly to a fixed-term worker who has worked for one year, the employment relationship is terminated even before the occurrence of the right to use annual leave. Thus, it is difficult to claim annual leave allowance under Article 60(1) of the Labor Standards Act in the direction of expanding the guarantee of workers’ paid leave, as well as the case where the above annual leave allowance exceeds one year or one year’s paid leave.

Therefore, it is reasonable to interpret the Defendant’s Republic of Korea that the payment of paid leave of up to 26 days for a fixed-term worker whose term of employment contract is one year, or an allowance for non-use thereof, should be granted to the fixed-term worker, and otherwise, the Plaintiff’s assertion cannot be accepted, assuming that Article 60(1) and Article 60(2) of the Labor Standards

4. Conclusion

Therefore, the plaintiff's claim of this case is dismissed for reasons.

Judges Kim Jae-hwan

* The ruling of small-sum case may choose not to state the reasons in accordance with Article 11-2(3) of the Trial of Small Claims Act.

1) The amendment was made by Act No. 15108 on 11, 2017 and was enforced from May 29, 2018