2014 old-gu 5932 Revocation of the rejection of permission to change the workplace of foreign workers

A

Secretary General of the Central Regional Employment and Labor Office;

June 8, 2015

July 6, 2015

1. On May 20, 2013, the Defendant’s rejection disposition against the Plaintiff regarding permission for the change of foreign workers’ workplace against the Plaintiff is revoked.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff, who is a nationality of Pakistan, entered the Republic of Korea with the employment permit for foreign workers (from April 20, 201 to April 19, 201) in accordance with the Act on the Employment, etc. of Foreign Workers (hereinafter “Act”), and served in Japan, Inc., Ltd. (hereinafter “Nonindicted Company”) from April 20, 201 to April 20, 201.

B. On July 4, 2012, Nonparty Company submitted to the Defendant a report on changes in employment of foreign workers, etc. without justifiable procedures, at least five days (from June 25, 2012 to July 4, 2012) and the Defendant accepted the said report.

C. On April 5, 2013, the Plaintiff filed an application with the Defendant for change of place of business on the ground of termination of a labor contract (the termination during the period of a labor contract). On June 25, 2012, the Defendant issued a disposition of refusal of change of place of business on the ground that the filing date of an objection against the application for change of place of business and the report on change of employment was made on April 5, 2012, which was one month after June 25, 2012, the date on which the application period expired (hereinafter “instant disposition”).

D. The Plaintiff dissatisfied with the instant disposition and filed an administrative appeal with the Central Administrative Appeals Commission, but was dismissed on February 18, 2014, and the said written ruling was notified to the Plaintiff on May 30, 2014. [Grounds for recognition] The Plaintiff did not dispute, each entry in Gap’s 1, 2, and Eul’s 1 through 4 (including each serial number), and the purport of the oral argument.

2. Judgment on the defendant's main defense

A. The defendant's assertion

A foreign worker may engage in employment activities within three years from entry into the Republic of Korea, and may exceptionally obtain a re-employment permit and extend employment activities only once within two years. The Plaintiff entered the Republic of Korea on April 20, 201 and for which three years have already elapsed since the period of employment was extended. Thus, even if the instant disposition was revoked, it is impossible for the Defendant to change the place of business, and thus, the instant lawsuit shall be dismissed as there is no interest to seek revocation of the instant disposition.

B. Determination

On April 20, 2014, the three-year period of the Plaintiff’s job-seeking activities already terminated on or around April 20, 2014, and the Plaintiff appears not to have obtained an extension of the activity period. Accordingly, even if the instant disposition is revoked, it would be difficult for the Plaintiff to immediately commence work at another workplace with the permission of change of the workplace. However, if the instant disposition is revoked, the Plaintiff appears to have legal interest to recover, such as receiving benefits from the special case of employment re-entry under Article 18-4 of the Act, and therefore, the Defendant’s principal safety defense is without merit

3. Determination on the legality of the disposition

A. The plaintiff's assertion

The Plaintiff, who was working in the company of the non-party company, listened to the news that he was aware that he was satison’s satison. From April 23, 2014 to June 23, 2012, the Plaintiff left the Republic of Korea with leave granted from April 23, 2014 to June 23, 2012. The Plaintiff asked the non-party company’s foreigner’s satison’s satison to postpone the leave more. The Plaintiff confirmed that the Plaintiff’s intention was delivered to the person in charge.

Since the plaintiff entered Korea on July 11, 2012, the plaintiff was not absent without permission, the non-party company had already submitted a written report to the defendant, such as employment change (e.g., escape). The non-party company notified the plaintiff of his dismissal on the ground that the non-party company was absent without permission.

Since then, the Plaintiff filed an application for remedy with the Gyeonggi Regional Labor Relations Commission for unfair dismissal, the said commission’s departure report is illegal; the dismissal of the Nonparty Company was recognized as unfair dismissal; and the Nonparty Company consulted with the Nonparty Company to reinstate the Plaintiff to the original position around January 31, 2013 in the review procedure (National Labor Relations Commission) applied by the Nonparty Company (National Labor Relations Commission). As such, the Defendant’s disposition based on the premise that the Plaintiff could not be said to have left the place of business without permission.

(b) Related statutes;

The entry in the attached Form is as specified in the relevant statutes.

(c) Fact of recognition;

1) The fact that the Gyeonggi Regional Labor Relations Commission was recognized as a civilian secretary on October 11, 2012

C Around April 23, 2012, the Plaintiff was aware that the Plaintiff’s entrance was critical, and the Nonparty Company was granted leave from April 23, 2012 to June 23, 2012 (goldday). However, the Plaintiff did not attend the school on April 6, 2012, and the officer of the Nonparty Company transferred that “the Plaintiff was unable to enter the Party, but did not return to Korea,” while entering the school on May 23, 2012.”

On July 3, 2012, the person in charge of the non-party company sent a mobile phone text message to the Immigration Office, etc. that the plaintiff is absent from work without permission for at least five days. However, the plaintiff was not delivered.

On July 4, 2012, the non-party company, who has no response by the plaintiff, submitted to the defendant a written report, such as employment change (e.g., escape).

○ The Plaintiff entered the Republic of Korea on July 11, 2012, and demanded the Nonparty Company to be reinstated, but the Nonparty Company notified the Plaintiff of the Non-Party Company of the non-Party’s failure to reinstate on July 18, 2012.

2) On October 11, 2012, the Gyeonggi Regional Labor Relations Commission rendered a decision that “the dismissal of a non-party company against the Plaintiff as of June 25, 2012 is unfair, and the non-party company made a decision that “the dismissal of the non-party company is unfair, and the non-party company paid the Plaintiff the amount equivalent to the wages that could have been received during the period of the dismissal.”

◎ 원고의 무단결근 여부: 원고가 휴가연장신청을 직접 하지는 않았으나 2012. 6. 24.경 동료인 B을 통해 휴가연장신청을 하였으므로, 원고가 고의로 무단결근을 한 것은 아니다.

◎ 소외 회사의 이탈 신고의 정당성 여부: 소외 회사가 날짜를 지정하여 원고에게 복귀하도록 연락하지 않고, 원고의 답변을 듣지 않은 채 피고에게 무단이탈 신고를 한 것은 절차상 하자가 있다.

The legitimacy of the right to dismiss of the company at ○○ is whether the plaintiff's absence from office does not constitute an inevitable reason for retirement under the rules of employment of the non-party company, but it constitutes a substantial dismissal, and since it did not go through the procedures necessary for the dismissal, the dismissal disposition is illegal and unfair.

3) Meanwhile, in the process of review by the National Labor Relations Commission on October 11, 2012, the non-party company filed a petition for a trial with the National Labor Relations Commission, and there was a settlement between the Plaintiff and the non-party company on January 29, 2013 that “the non-party company shall return the Plaintiff to its original position and pay 4,037,230 won the amount equivalent to the wages.”

4) On February 15, 2013, the Plaintiff worked in the non-party company. However, the non-party company did not actually return the Plaintiff to its original position while the Plaintiff submitted all necessary documents to the Defendant upon reporting the change of employment to the Plaintiff. Meanwhile, the Defendant did not return the Plaintiff’s civil petition because the report on the change of employment was made legally.

5) On April 5, 2013, the Plaintiff determined that the non-party company was no longer able to work, and applied for the change of the place of business to the Defendant on the ground of the termination of the labor contract (the termination during the period of the labor contract).

[Reasons for Recognition] Determination as to each evidence above

1) 법 제17조는 사용자가 외국인근로자와의 근로계약을 해지하거나 그 밖에 고용과 관련한 중요 사항을 변경하는 등 대통령령으로 정하는 사유가 발생하였을 떄에는 고용노동부령으로 정하는 바에 따라 직업안정기관의 장에게 신고하도록 규정하고 있고, 법 시행령 제23조는 그러한 사유 중 하나로 '외국인근로자가 사용자의 승인을 받는 등 정당한 절차 없이 5일 이상 결근하거나 그 소재를 알 수 없는 경우'를 들고 있다(3호). 한편, 법 제25조는 사용자가 정당한 사유로 근로계약기간 중 근로계약을 해지하려고하거나 근로계약이 만료된 후 갱신을 거절하려는 경우(1호), 외국인근로자의 책임이 아닌 사유로 인하여 사회통념상 그 사업 또는 사업장에서 근로를 계속할 수 없게 되었다.고 인정하여 고용노동부장관이 고시한 경우 (2호) 등에는 외국인근로자가 다른 사업 또는 사업장으로의 변경을 신청할 수 있도록 규정하고 있고, 고용노동부고시 제2012-52호는 사용자로부터 부당한 처우를 당하여 더 이상 근로관계 유지가 어렵다는 점이 객관적으로 인정되는 경우 등을 법 제25조 제1항 2호의 사업장 변경 신청 사유 중 하나로 정하고 있다.

The purpose of this relevant provision is to promote the smooth supply and demand of human resources and the balanced development of the national economy by systematically managing and introducing foreign workers. Accordingly, if a foreign worker is absent from office for at least five days without the employer’s approval or his/her whereabouts is unknown, the employer may file a report on the employment change, etc. based on the worker’s secession. In principle, if an administrative agency accepts the report, the foreign worker shall not be allowed to change his/her workplace at his/her own discretion to another workplace without any justifiable reason, thereby ensuring stability in the supply and demand of human resources by preventing the harmful effects of a foreign worker moving his/her workplace to another workplace during the labor contract period without any justifiable reason. However, on the other hand, if a foreign worker is unable to continue his/her work at the workplace due to personal reasons without his/her own cause or non-divated, he/she shall guarantee the foreign worker’s right to

On the other hand, Article 25 (3) of the Act provides that an application for change to another workplace shall be made within one month from the date of termination of the employment contract with the employer.

2) We examine whether the contract of the Plaintiff and the non-party company is terminated.

In light of the facts found earlier, it is difficult to view that the Plaintiff was absent from work without permission between June 25, 2013 and July 4, 2013, and there is no other evidence to acknowledge otherwise. Therefore, it cannot be said that the Plaintiff’s labor contract with the Nonparty Company and the Plaintiff’s retirement from office automatically upon retirement on or around June 25, 2013 pursuant to the rules of employment of the company.

Next, according to the facts found earlier, it is reasonable to view that the declaration of dismissal of the non-party company against the non-party company was withdrawn as well, inasmuch as a compromise between the non-party company and the plaintiff on January 29, 2013, on the other hand, to return the plaintiff to the original position as of February 15, 2013, was concluded, since it is recognized that the non-party company expressed its intention to dismiss the plaintiff on June 25, 2013.

In addition, it cannot be deemed that the Plaintiff’s labor contract terminated on or around June 2013 due to the declaration of intention to dismiss the Nonparty company.

Therefore, it is difficult to view that the labor contract between the plaintiff and the non-party company is terminated on June 6, 2013 and June 25, 2012, and the plaintiff's labor contract was terminated on the premise that the plaintiff's labor contract was terminated on June 25, 2012, the disposition of this case taken by the defendant on the ground that the plaintiff did not file an application for alteration of the letter of resignation with the defendant within one month from June 25, 2012 is unlawful (the defendant is not the defendant, but the plaintiff is not subject to the statement in the application submitted by the plaintiff) and whether there is a reason for alteration of another place of business under the law of the plaintiff. As seen above, even if the settlement is completed, if the non-party company is not in fact reinstated to the original position and the plaintiff cannot provide labor any more at the above company, it is determined that the plaintiff's labor contract falls under the case where the non-party company cannot continue to work without any reason attributable to its assets (Article 25 (1) 2 of the Act).

4. Conclusion

Since the disposition of this case should be revoked in an unlawful manner, the plaintiff's claim shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.

Judges Park Shin-young

1) As seen in paragraph 3(d) below, the Plaintiff cannot continue to work at a workplace without any cause attributable to the Plaintiff (Article 25 of the Act).

Since there is room for falling under paragraph (1) 2, it may fall under Article 18-4 (1) 1 of the Act prescribing special cases.

2) It appears to the effect that the employment permit of the Plaintiff was de facto revoked due to the departure report, and it is difficult to deal with various insurance policies against the Plaintiff.

3) As to the termination of an employment contract after February 15, 2013, which is the date of the original employment, no evidence was submitted from both parties.

4) The plaintiff submitted an application to the defendant on the ground of the termination of the "labor contract" (the termination during the period of an employment contract).

A person shall be appointed.

A person shall be appointed.