The legislative purport of Article 4(1) and (2) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers, and the method of calculating the total period of continuous employment under Article 4 of the Act where the employment relationship before and after the period is deemed to continue without interruption even if the period corresponding to the grounds for exception under the proviso of Article 4(1) exists among the fixed-term employment contract repeatedly concluded.

Article 4(1) and (2) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers

Supreme Court Decision 2014Du45765 Decided November 10, 2016 (Gong2016Ha, 1930)

Plaintiff 1 and one other (Law Firm Busan, Attorneys Ban-san et al., Counsel for the plaintiff-appellant)

Busan Metropolitan City Dong-gu (Law Firm Sejong, Attorneys Park Dong-bong, Counsel for the plaintiff-appellant)

Busan High Court Decision 2015Nu24253 decided July 12, 2017

The part of the judgment of the court below against the plaintiffs is reversed, and that part of the case is remanded to Busan High Court.

The grounds of appeal are examined.

1. Article 4 of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (hereinafter “ Fixed-Term Act”) provides that “An employer may employ a fixed-term worker within the extent not exceeding two years (where a fixed-term employment contract is renewed repeatedly, the total period of continuous employment shall not exceed two years).” Meanwhile, the proviso provides that “If a fixed-term worker is employed in excess of two years despite the absence or extinguishment of the grounds under the proviso to paragraph (1), the fixed-term worker shall be deemed an employee who has entered into an employment contract without a fixed-term employment contract.” The legislative purport of the aforementioned provision is to guarantee the status of an employee by preventing abuse of a fixed-term employment contract (see, e.g., Supreme Court Decision 2014Du45765, Nov. 10, 2016).

In light of the form and content of the provision of the fixed-term employment law, and the legislative intent, even if there exists a period falling under the exceptional reason under the proviso of Article 4(1) of the Fixed-term Employment Act, if the employment relationship before and after the period falling under the exceptional reason is deemed to continue without interruption, it is reasonable to calculate the total period of continuous employment under Article 4 of the Fixed-term Employment Act by adding the period of continuous employment to the period excluding the period falling under the exceptional reason.

2. A. The reasoning of the lower judgment and the record reveal the following.

1) On October 1, 201, Plaintiff 1 was employed as a fixed-term nurse at the ○○○ Public Health Center operated by the Defendant, and served until December 31, 201, as the visiting nurse in the field of the program for vaccination and vaccination. From January 1, 2012 to December 31, 2012, Plaintiff 1 served as the visiting nurse in the field of the program for vaccination and health management. Plaintiff 2 was employed to the ○○ Public Health Center as a fixed-term sports worker in the field of the health promotion project and was employed until May 31, 2012, and worked as the visiting health management center from June 1, 2012 to December 31, 2012.

2) When a visiting health management project, which was being carried out as a multiple individual project, was integrated into one project called an integrated health promotion project from January 1, 2013, the Defendant entered into an employment contract with 14 persons, including the Plaintiffs, who were engaged in visiting health care projects at ○○○ Public Health Center (from January 1, 2013 to December 31, 2013), and had them take exclusive charge of visiting health care projects at the community’s integrated health promotion project in 2013.

3) After that, around December 2013, the Plaintiffs applied for the public notice of recruitment of fixed-term workers in the National Health Promotion Project for the Defendant’s 2014 community integration, and concluded a labor contract with the Defendant from January 1, 2014 to June 30, 2014.

4) Until the end of the term of the above employment contract, the Defendant, and the National Democratic Union Trade Union, to which the Plaintiffs and the Plaintiffs belong, agreed on June 30, 2014, that “the period of the Plaintiffs’ continuous employment was terminated before January 1, 2013,” and that “the extension of the term of the Plaintiffs’ continuous employment until December 31, 2014.”

5) On November 26, 2014, the Defendant notified the Plaintiffs of the termination of the term of employment contract as of December 31, 2014.

B. Examining the following circumstances revealed in the above facts in light of the legal principles as seen earlier, it is reasonable to view that the Plaintiffs are deemed workers who entered into an employment contract without a fixed period of time pursuant to Article 4(2) of the Fixed-term Workers Act, as they constitute a case where the Defendant had already worked more than two years before notifying the expiration of the term of employment contract

1) In ○○○ Public Health Center, Plaintiff 1 served as a nurse in the field of voluntary vaccination programs from October 1, 201 to December 31, 201; ② as a visiting nurse in the field of visit health management programs from January 1, 2012 to December 31, 2012; ③ as a visiting nurse in the field of community integrated health promotion projects from January 1, 2013 to December 31, 2014.

In the ○○○ Public Health Center, Plaintiff 2 served as a sports source in the field of the National Health Promotion Project from January 1, 2012 to May 31, 2012; ② as a sports source in the field of the Visit Project from June 1, 2012 to December 31, 2012; ③ as a community integrated health promotion center from January 1, 2013 to December 31, 2014, respectively.

2) The period during which the plaintiffs engaged in the visit health management business before being integrated into the National Health Promotion Project (2) falls under the exception of the proviso of Article 4(1)5 of the Fixed-term Act, but the period during which the plaintiffs worked before and after the incorporation does not fall under the exception of the proviso of Article 4(1) of the Fixed-Term Act.

3) ① A period of time, ② A period of time exists, but the Plaintiffs continued to provide the Defendant with labor without a period of time. ② A period of time is not included in the total period of continuous work under Article 4 of the Fixed-Term Workers Act, which falls under the exception under Article 4(1)5 proviso of the Fixed-term Workers Act.

4) ① During the period, the Plaintiffs were affiliated with the ○○○○ Public Health Center, and Plaintiff 1 and Plaintiff 2 worked as a nurse, and Plaintiff 2. ① Even if the details of the Plaintiffs’ specific duties during the period were changed to the extent that they visit the homes of vulnerable groups in vaccination or local residents’ health care in the public health center to conduct health care or sports guidance, etc., the duties as nurse or sports center are not essentially changed.

5) The Defendant: (2) concluded a fixed-term employment contract with the Plaintiffs through the employment procedure for a period of time; (3) However, in light of the background of the employment or the process of the employment procedure, it does not seem that the Defendant intended to completely terminate the employment relationship before the Plaintiffs and the Defendant and to newly start a separate employment relationship.

6) Although the Defendant, the Plaintiffs, and the Korean Democratic Union Trade Union to which the Plaintiffs belong agreed on June 30, 2014 to the effect that “the Plaintiff’s period of continuous work before January 1, 2013 is severed,” Article 4 of the Fixed-term Workers Act is considered a mandatory provision. As such, it cannot be deemed that the total period of continuous work under Article 4 of the Fixed-Term Workers Act has changed by such agreement.

3. Nevertheless, the lower court determined, on the grounds indicated in its reasoning, that the Plaintiffs’ initial employment contract with the Defendant and the employment contract concluded after January 1, 2013 constituted separate employment contracts, and thus, cannot be added to the total period of continuous employment under Article 4 of the Fixed-term Work Act. In so determining, the lower court erred by misapprehending the legal doctrine on the requirements under Article 4 of the Fixed-Term Work Act, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit.

4. Therefore, the part of the lower judgment against the Plaintiffs is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ki-taik (Presiding Justice)