(영문) 부산지방법원 2008.12.12.선고 2008가합5731 판결

2. The defendant shall pay to the plaintiff the amount calculated by the ratio of KRW 2,036,640 per month from January 24, 2007 to the time the plaintiff is reinstated.

3. The plaintiff's remaining claims are dismissed.

4. 1/10 of the costs of lawsuit shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

5. Paragraph 2 can be provisionally executed.

Cheong-gu Office

The defendant shall pay to the plaintiff the amount calculated by applying the rate of KRW 2,036,640 per month from October 29, 2006 to the time the plaintiff is reinstated. The defendant shall pay to the plaintiff the amount of KRW 6,109,920 per month.

Reasons

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged in full view of Gap evidence 2, 4, Eul evidence 6-1 through 3, Eul evidence 2, Eul evidence 3-1, Eul evidence 7-12, Eul evidence 13-5 through 13-8, and Eul's witness's witness's witness's witness's witness's testimony.

A. On December 21, 1990, the Plaintiff was employed by the Defendant company that is engaged in passenger transport services and served as a bus operator.

B. On July 29, 2006, the first dispatch time of the Plaintiff was scheduled to be 06:51, and the Plaintiff was driving his own car at his own house located in the Busan Seo-gu, Busan, to the Defendant company located in the Busan Seo-gu, and was under his permanent residence in Busan, Jung-gu, Busan, about 05:20. On the opposite line, the Plaintiff suffered bodily injury, such as the blood alcohol level 0.144% (hereinafter “the instant accident”).

C. On the day of the instant accident, the Plaintiff filed an application for temporary retirement from office for one month from July 29, 2006 to the Defendant Company on the ground of the pertinent injury’s hospitalized treatment on August 2006, after hospitalized at the Busan National University Hospital on the day of the instant accident, and approved the Defendant Company.

D. After that, the Defendant Company extended the period of the Plaintiff’s temporary retirement until September 29, 2006, and did not submit to the Plaintiff for reinstatement since the Plaintiff should undergo hospital treatment even after the expiration of the period of the temporary retirement. On October 23, 2006, the Defendant Company held a personnel committee on the ground that “the conditions of the temporary retirement have not been resolved within the period of the temporary retirement and the reinstatement has not been submitted after the expiration of the period of the temporary retirement,” decided to terminate the employment contract with the Plaintiff pursuant to Article 10 subparag. 4 of the collective agreement and Article 51 of the Rules of Employment, and notified the Plaintiff of the dismissal on October 29, 2006 (hereinafter “instant dismissal”). The Plaintiff received hospital treatment until January 23, 2007, even after the dismissal of the instant case.

F. Details regarding the suspension, reinstatement, dismissal, etc. of the collective agreement (a collective agreement concluded between the Busan Bus Transport Business Association and the Korea Automobile Trade Union's Busan Branch) and the rules of employment of the defendant company are as follows.

[Collective Agreement] Article 8 (Collective Agreement) A company may order a person who is an employee and falls under any of the following subparagraphs to take a leave of absence: Provided, That the period of temporary retirement shall be unpaid, but the period of temporary retirement shall be excluded.

1. When he/she has complied with a requisition or call-up; 2. When he/she has responded to the mobilization of labor; 3. When he/she recognizes that employment is impossible due to personal relations between labor and management, the period therefor shall be within one month (in cases where both labor and management agree, within two months), and a person who requires a date at least two months shall be subject to Article

4. When he/she violates rules of employment and company regulations; 5. The period of temporary retirement under Article 9 (Period of Temporary Retirement) shall be as follows:

1. In cases of subparagraph 1, 2 or 5 of the preceding Article, the relevant period;

2. In the case of subparagraphs 3 and 4 of the preceding Article, the consultation between the company and the unit branch offices shall govern;

If an employee falls under any of the following subparagraphs, the company may dismiss him/her: Provided, That the company shall not dismiss the member of the labor union without any justifiable reason within one month before the date of payment of bonus:

4. The collective agreement concluded between the Busan Urban Bus Business Association and the Busan Urban Bus's Busan Urban Bus Association shall be in accordance with Article 47 of the Rules of Employment that the person in question will not submit his/her reinstatement within five days after the expiration of the period of temporary retirement.

Article 48 (Period of Temporary Retirement) The period of temporary retirement of an employee shall not exceed one month, and if the conditions of temporary retirement are not resolved within such period, he/she shall be deemed to have been naturally discharged: Provided, That matters specified by a specified period, such as the period of requisition and call, shall be until

Article 50 (Wages during Period of Leave of Absence)

(1) Wages during the period of leave of absence shall be unpaid.

An employee shall submit to the company a reinstatement within five days when the grounds for temporary retirement cease to exist, and if no such report is made, he/she shall be deemed to have retired from office.

2. Judgment on the claim to nullify dismissal

In light of Article 10 subparag. 4 of the collective agreement, which provides that the Plaintiff, who is an employee of the Defendant Company, was temporarily dismissed for two months with the approval of the Defendant Company pursuant to Article 8 subparag. 3 of the collective agreement on the ground of the injury suffered by the instant accident during his work period, but the cause of temporary retirement has not been resolved even after the expiration of the period of temporary retirement, and thus the Defendant Company did not submit the reinstatement to the Defendant Company. As such, the fact that the Defendant Company dismissed the Plaintiff based on Article 10 subparag. 4

As such, since the dismissal of this case constitutes a case where the employer terminated the labor contract relations with the employee under the provisions of the collective agreement, etc. with the unilateral expression of intent, it must be ultimately "justifiable grounds" under Article 23 (1) of the Labor Standards Act in order to recognize it as legitimate. Whether such dismissal is justifiable or not should be determined reasonably by comprehensively taking into account all the circumstances such as whether the Plaintiff's temporary retirement was attributable to the Defendant company or due to occupational injury, the treatment period of the Plaintiff, and the effect of the Plaintiff's long-term temporary retirement on the Defendant company (see Supreme Court Decision 93Da3721, July 13, 1993)

However, according to the above facts, although it is difficult to see that the injury suffered by the Plaintiff due to his ordinary route of work using his own car constitutes occupational injury under the Industrial Accident Compensation Insurance Act, as long as the injury suffered in the work process closely and insufficiently related to the performance of his duties is evident, the relevance of the injury cannot be denied, and 2. The accident of this case is not attributable to the Plaintiff.

In addition, the above evidence and evidence No. 5, No. 9, No. 15, and No. 16-1 and No. 2 are considered as being comprehensively reflected in the following circumstances, i.e., the grounds for temporary retirement recognized by the defendant company under the provisions of Articles 8 and 9 can be classified as the cases for which it is attributable to the worker himself/herself, and the remaining reasons for temporary retirement can be resolved for the subsequent 0 months. Thus, it is reasonable to interpret that the above provision of No. 1 was applicable only to the case where the worker cannot be employed due to reasons attributable to the worker himself/herself, regardless of the fact that the above provision of No. 2 was applied to the defendant company’s temporary retirement for 0 months, and that the plaintiff would not have been employed for 6 months, and that the above provision of No. 2 was applied to the defendant company’s temporary retirement for 10 months, and that there was no concern that the worker and the worker were more likely to be employed by the defendant company for 20 months, as stated in the above collective agreement No. 96 months.

Therefore, the dismissal of this case is null and void, and as long as the defendant company is disputing the validity of the dismissal of this case, the plaintiff has a legal interest in seeking confirmation of its invalidity.

3. Determination on the claim for wage payment

A. As to the claim for wage payment before dismissal

The plaintiff was paid the monthly average of KRW 2,036,640 at the time of the accident in this case, but the defendant company was not paid the above benefits from the defendant company for three months after the accident in this case. Thus, the defendant company is obligated to pay the plaintiff a total of KRW 6,109,920 ( KRW 2,036,640) as the unpaid benefits.

On the other hand, there is no dispute between the parties that the plaintiff did not receive benefits as alleged above from the defendant company, but on the other hand, it is recognized that the plaintiff was unable to provide his work to the defendant company because of the injury suffered by the accident in this case during the period of the above argument, and that the collective agreement and the rules of employment of the defendant company stipulate that the period of temporary retirement shall not be paid. Thus,

B. As to the claim for wage payment after dismissal

As seen earlier, as long as the dismissal of this case is null and void, the labor contract between the plaintiff and the defendant company still remains valid. Thus, the defendant company is obligated to pay the amount equivalent to the wages that the plaintiff could have received if the plaintiff had worked normally from the day after the dismissal of the plaintiff to the day of reinstatement, and it is reasonable to deem that the plaintiff was unable to provide the plaintiff with normal labor during the above period, since the fact that the plaintiff received hospitalized treatment until January 23, 2007, even after the dismissal of this case, is as seen earlier, as seen in the above, and in full view of the purport of arguments as to Gap evidence 7-1, 2, and 3, it is recognized that the plaintiff was receiving wages of average 2,036,640 won per month at the time of the accident, and the average monthly wages after the dismissal of this case was also paid

shall be ratified as such.

Therefore, the defendant company is obligated to pay to the plaintiff the amount equivalent to the wages of 2,036,640 won per month from January 24, 2007 to the plaintiff's reinstatement, which enables the plaintiff to provide normal labor (the part of the plaintiff's assertion seeking the payment of the amount equivalent to the wages for the period from October 29, 2006 to January 23, 2007, which is the date of dismissal of this case, shall not be accepted for the reasons as seen above).

4. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges

The chief judge, chief judge and associate judge

Judges Geman-type

Judge fixed-ranking

참조조문

-근로기준법 제23조 제1항

-산업재해보상보험법

유사 판례

-대법원 1996. 10. 29. 선고 96다21065 판결

-서울고등법원 1991. 3. 29. 선고 90재나394 판결

-대구고법 1989. 7. 18. 선고 88나5281 제1민사부판결 : 확정

-부산지방법원 2008.7.4.선고 2007가합24322 판결

-대법원 2009. 6. 11. 선고 2009두3583 판결