In a case where a child care teacher Gap, who was ordered by the president of a child care center to manipulate the number of days of attendance of a child, reported this to the relevant local government, and the head of the competent Gun who confirmed the unjust receipt of subsidies through the attendance number manipulation, and the head of the competent Gun issued a disposition to recover subsidies and suspend the status of the president; Gap, whose labor contract terminated, applied for a public interest reporter protection measure to the Anti-Corruption and Civil Rights Commission that it constitutes disadvantageous measures against public interest reporters, but failed to pass the employment procedure of a newly appointed director, and the Anti-Corruption and Civil Rights Commission decided to take protective measures such as ordering Eul to conclude a labor contract with Gap for one year, the case holding

In a case where: (a) a child care teacher Gap, who was ordered to manipulate the number of days of attending a child care center and reported to the relevant local government; (b) the head of the competent Gun who confirmed the unjust receipt of subsidies through the attendance number manipulation, and the head of the competent Gun issued a disposition to recover subsidies and suspend the status of the head; (c) upon the termination of the labor contract, Gap applied for a public interest report to the Anti-Corruption and Civil Rights Commission that he/she was subject to disadvantageous measures against public interest reporters; and (d) the Anti-Corruption and Civil Rights Commission decided to take protective measures, such as ordering Eul to conclude a labor contract for one year with the public interest reporter; (c) considering that the interval between the public interest report and the interview is very short, the public interest report affected the decline, and considering the purport and contents of Eul’s statement, it appears that the public interest report was deemed that Eul had an intention to disadvantage the child care teacher who made the public interest report; and (d) Gap was deemed to have been subject to disadvantageous measures in relation to his/her status during the employment process of the public interest report.

Article 2 subparag. 6 and Article 23 subparag. 2 of the Protection of Public Interest Reporters Act

Plaintiff 1 and one other (Attorney Park Jong-dae et al., Counsel for the plaintiff-appellant)

Anti-Corruption and Civil Rights Commission Chairperson

Intervenor joining the Defendant (Law Firm Pump, Attorney Park Park Sang-jin, Counsel for defendant-appellant)

April 15, 2014

1. The plaintiff 2's lawsuit shall be dismissed.

2. The plaintiff 1's claim is dismissed.

3. The costs of the lawsuit, including the part resulting from the supplementary participation, are assessed against the plaintiffs.

The Defendant’s decision on protective measures against the Plaintiffs on September 23, 2013 is revoked.

1. Basic facts

A. Plaintiff 1 is currently the president of the ○○ Child Care Center located in Pyeongtaek-gun ( Address omitted) (hereinafter “instant Child Care Center”), and Plaintiff 2 is the former president.

B. The Intervenor joining the Defendant (hereinafter “ Intervenor”) served as an infant care teacher of the instant childcare center from June 18, 2012.

C. On February 13, 2013, Plaintiff 2 ordered infant care teachers, including the Intervenor, to manipulate the number of days of the Plaintiff’s attending school. Accordingly, infant care teachers, including the Intervenor, reported Plaintiff 2’s violation of the Infant Care Act to the Gangwon-do Office and the Bupyeong-gu Office through a national newspaper on February 13, 2013 and February 14, 2013 (hereinafter “instant public interest report”).

D. A public official in charge of infant care belonging to Pyeongtaek-gun confirmed that: (a) Plaintiff 2’s manipulation of the number of days of attendance of Plaintiff 2’s child care teachers, based on the Intervenor’s statement; and (b) Plaintiff 2 received child care fees and subsidies of KRW 1,236,540 in terms of meal expenses and meal expenses. Accordingly, on March 14, 2013, the head of Pyeongtaek-si revoked the consignment contract for the instant child care center as of February 28, 2013; (b) took measures to recover subsidies of KRW 1,236,540; and (c) suspend Plaintiff 2’s qualification for 45 days.

E. In this process, on February 26, 2013, Pyeongtaek-gun concluded a short-term employment contract with infant care teachers, including intervenors whose employment contract was terminated as of February 28, 2013.

F. Meanwhile, on March 4, 2013, Pyeongtaek-gun appointed Plaintiff 1 as the temporary president of the Child Care Center, and on March 8, 2013, publicly announced the recruitment of the consignment contract of the Child Care Center. On March 20, 2013, Plaintiff 1 was selected as the truster of the Child Care Policy Deliberative Committee and served as a formal president thereafter.

G. On March 21, 2013, Plaintiff 1 published a public notice of employment of childcare teachers and other employees of the instant childcare center. On March 22, 2013, Plaintiff 1 notified childcare teachers, including intervenors, that the employment contract was terminated on March 21, 2013, and notified that Plaintiff 1 would apply for an open recruitment interview on March 25, 2013.

H. On March 27, 2013, Plaintiff 1 conducted an interview on March 27, 2013, and the Intervenor applied for the above examination, but failed to enter five selected personnel as a result of the evaluation.

(i) On June 24, 2013, an intervenor filed an application for protective measures against a whistleblower by asserting that the intervenor failed to pass an open recruitment of the childcare center of this case to the Defendant and public officials belonging to Pyeongtaek-gun constitutes disadvantageous measures against the whistleblowers.

(j) On September 23, 2013, the Defendant: (a) concluded an employment contract with the Intervenor from April 1, 2013 to February 28, 2013 with respect to Plaintiff 2 on the basis of the said application; and (b) concluded an employment contract with the Intervenor, etc., even after the termination of the consignment contract with Plaintiff 2 and the instant childcare center; and (c) thus, Plaintiff 2 cannot be deemed to have taken unfavorable measures, such as dismissal under the Act on the Protection of Public Interest Reporters. However, with respect to Plaintiff 1, the Defendant determined that the Intervenor was subject to disadvantageous disposition on the ground of the public interest report, etc.; (d) concluded an employment contract with the Intervenor and the instant childcare center head from February 28, 2013 to February 20, 2014; and (e) decided to take protective measures to demand restoration of the original state by providing ordinary wages to the Intervenor, etc. (hereinafter “instant protective measures”).

[Reasons for Recognition] Uncontentious Facts, Gap evidence 1, Eul's each entry in the evidence No. 1, and the purport of whole pleadings

2. Judgment on the main defense of this case

A. Summary of the main defense

The plaintiff 2 is not a subject of the disposition in this case, and there is no standing to sue to seek revocation of the above disposition.

B. Determination

1) Plaintiff 2, as a person subject to the instant disposition, sought revocation of the said disposition, on the premise that it has an effect on himself/herself.

2) However, the Defendant’s disposition of this case explicitly states that it cannot be deemed that Plaintiff 2 was subject to disadvantageous measures, such as dismissal under the Act on the Protection of Public Interest Reporters, on the grounds of its decision. Moreover, the content of the instant disposition also shows that Plaintiff 1, the president of the instant childcare center, entered into an employment contract with the Intervenor and paid unpaid wages, and thus, it may not affect Plaintiff 2 who already lost the position of the president.

3) If so, Plaintiff 2 is not subject to the instant disposition, and the lawsuit seeking its revocation is unlawful as there is no benefit of lawsuit. The Defendant’s principal defense is with merit.

3. Whether the decision on the protective measures of this case is legitimate

A. Summary of the plaintiff 1 (hereinafter "Plaintiff 1")'s assertion

The Defendant determined that the Intervenor’s failure in the process of employing the child care teacher of the instant childcare center was disadvantageous to the whistleblowers. However, the above teachers recruitment procedure was conducted objectively and fairly. Therefore, the decision of the instant protective measure based on the erroneous judgment is unlawful.

B. Facts of recognition

1) In order to determine the instant protective measure, the Defendant confirmed the following facts in the course of investigating the causal relationship between the public interest report and disadvantageous measures.

A) On March 2013, when the Plaintiff was appointed as a temporary president to the instant childcare center, the Plaintiff was aware of considerable part of the situation of the said childcare center caused by the instant public interest report from several police officers. In addition, on March 21, 2013, the Plaintiff requested that one of his parents allow the instant public interest report to continue to work by employing two parents, who are the operating members of the childcare center, or “to operate the childcare center by employing the aforementioned excellent childcare teachers.” In addition, the Plaintiff called “I do not have any responsibility for the parties, even if there is any person who has been the president on this day.”

B) The Plaintiff shall select five of the nine members (including intervenors) who applied for public recruitment of childcare teachers of the instant childcare center, and shall be composed of two members of the Plaintiff and Pyeongtaek-gun Child Care Center Federation as a public recruitment examiner. The Plaintiff allocated 30 points for each examiner and 70 points for interview assessment (including 20 points for subjective assessment by the examiner).

C) The Plaintiff: (a) granted to a holder of a certificate of infant care teachers the primary score of Grade 1 22, Grade 20, Grade 20, and Grade 3 18; and (b) granted two additional points when holding another certificate of qualifications related to infant care teachers; and (c) assessed it as a full score of 30 points. However, the Plaintiff granted additional points to a holder of a certificate of qualifications such as class 2 social workers and class 2 in accounting practice.

D) In the method of calculating the total point, the evaluation score per examiner is composed of 30 points for document evaluation and 70 points for interview evaluation, based on the full score of 100 points for document evaluation, and the total score of three examiners is to be evaluated as the full score of 300 points. However, only three examiners for interview evaluation were added up, and the document evaluation did not include the score of each examiner, but reflected only one examiner's score.

E) If the Plaintiff grants additional points to only one of the Intervenor’s 1-class kindergarten teachers’ first-class or the Plaintiff’s 1-class kindergarten teachers’ qualification certificate, and added up the document evaluation score by means of an ordinary total point calculation method, the Intervenor’s order of scores from the 7th to the 5th degree was changed from the failure to pass the interview.

F) The Plaintiff allocated 70 points out of 70 points for interview assessment, and indicated them as subjective assessment by examiners, and granted 14 points as the lowest point to infant care teachers who worked in the existing child care center of this case, including intervenors.

2) The result of grading of applicants in the course of employing child care teachers of this case is as follows:

An intervenor 2228 48 4198 ○ 20 129 20 ○ 20 ○ 20129 51 200 ○ 222214 58 224 224 20 20 20 20 20 139 57 216 (4) Kim 201453 214 20153 Kim 214 2014 2141 28 146 28 146 146 232 (1), ○ 222 229 ○ 2229 50 201 (5) 3) this △△△△ 202523 223 (3) 179 176666, 2017

3) Based on the above evaluation result, the result that the Defendant excluded from all additional points other than qualification certificates of infant care teachers, or calculated the evaluation score again, excluding only additional points related to qualification certificates, such as the head of a child care center (head of a facility), kindergarten teachers, computer accounts, social workers, etc., as a result of the re-evaluation of attached documents,

4) Meanwhile, the Intervenor filed an application for review on the relief from unfair dismissal with the assertion that he/she was dismissed by the Central Labor Relations Commission. On November 28, 2013, the Central Labor Relations Commission dismissed the application. The Intervenor filed a lawsuit seeking the revocation of the said decision on retrial (Seoul Administrative Court 2014Guhap50729), and the lawsuit is currently pending.

[Reasons for Recognition] Uncontentious Facts, Gap evidence 1, Eul evidence 2, Eul evidence 1, Eul evidence 3, Eul evidence 4, Eul evidence 5, Eul evidence 5, Eul evidence 1, and the purport of the whole pleadings

C. Determination

1) Article 23 Subparag. 2 of the Protection of Public Interest Reporters Act provides that where a public interest reporter, etc. takes disadvantageous measures within two years after the public interest report, etc., he/she shall be presumed to have received disadvantageous measures on the grounds of the relevant public interest report, etc. Meanwhile, Article 2 Subparag. 6 of the same Act takes into account the type of disadvantageous measures, and Article 2 Subparag. 6 of the same Act provides that “proprietary, removal, dismissal, and other disadvantageous measures in relation to the status of the public who is deprived of his/her status” as referred to in subparagraph (a) of the same Article. In light of the complicated and complicated administrative circumstances where the reason for the enactment of the Protection of Public Interest Reporters Act is complicated and complicated, it is difficult to detect and regulate acts detrimental to public interest in society only with the investigative capacity of an administrative agency, thereby promoting the promotion of public interest report by protecting those who report and their cooperation, and ultimately, contributing to the establishment of a transparent and clean social climate, it includes the formation of new employment contract and renewal of the employment contract where the requirements of the public interest reporter are considerably formed and terminated.

2) The circumstances revealed in the above facts are as follows.

① The Intervenor filed the instant public interest report on February 13, 2013 and February 14, 2013, and subsequently rejected the instant public interest report on March 27, 2013. The Intervenor’s existing labor contract was terminated on February 28, 2013, and the temporary employment contract was concluded between March 2013 and March 2013. However, considering the fact that the interval between the public interest report and the interview was very short, the said public interest report affected the decline, unless there exist any contractual grounds that the Intervenor is unable to be employed as the childcare teacher of the instant childcare center, other than the instant public interest report.

② In addition, according to the Defendant’s investigation, the Plaintiff asked parents of child care centers of this case to continue to work, including the Intervenor, etc. who made the instant public interest report, and it is confirmed that there was only the head of the pertinent public interest report, and the parties who made the public interest report should be held liable. (In light of the purport and content of the statement, the Plaintiff appears to have had an intention to put the child care teacher who made the public interest report of this case at a disadvantage before the employment procedure.

③ Meanwhile, the Plaintiff asserts that granting additional points to a two-class certificate in the accounting practice is a matter of determination by the employment authority based on the current status of the child care center which grants the additional points in any area. The granting of additional points to a two-class certificate in the accounting practice is due to the fact that there are many administrative dispositions and criminal complaints related to the subsidies for the child care center and that granting the additional points to a two-class social welfare worker is classified as social welfare facilities, and that granting the additional points to a two-class social welfare worker is active and timely, it is true that both social welfare worker and child care teacher who have obtained the qualification certificate and the qualification certificate are active and permanent, and thus granting additional points to the above qualification certificate is included in the above discretionary matters, and thus, it is not a problem. However, even if the Plaintiff’s assertion related to the practical necessity to grant additional points to each of the above qualifications is accepted, the head of the child care center may not grant any arbitrary additional points to his choice in the employment of the child care center, and the head of the child care center should provide fair points to an

According to Article 21(1) of the Infant Care Act and Article 21 [Attachment Table 1] of the Enforcement Decree of the same Act, the qualifications for the head of a child-care center may be acquired by persons with at least three years’ experience in child-care affairs, persons with at least five years’ experience in child-care affairs, and persons with at least five years’ experience in child-care affairs after obtaining the qualifications for the first degree of social workers. Furthermore, according to Article 22(2) [Attachment Table 2] of the Early Childhood Education Act, the first degree of kindergarten teachers’ license for the second degree of kindergarten teachers (this is an early childhood who is established in a university or college, a person who has obtained prescribed infant-care and teaching credits while attending a university or college, a graduate of education graduate school or a graduate school designated by the Minister of Education, who has majored in the education course of a kindergarten and education at the graduate school or a graduate school designated by the Minister of Education, etc.). The reason why the above qualifications for the head of a kindergarten or infant-care teacher need not be granted more than those who meet the above qualifications for infant and infant-care.

④ In addition, the Plaintiff asserts that the document evaluation may not change the scores depending on the member, as it is an objective standard. However, the allocation of the document evaluation to 30 and the interview evaluation to 70 in the recruitment process in the instant case is likely to cause the subjective involvement of the examiner. There is no reason to see that it is reasonable to reflect only one document evaluation without adding up the document evaluation conducted by three examiners, and there is no way to verify the appropriateness of the document evaluation conducted by one of the other if the document evaluation is not conducted by other two or if the document evaluation conducted by them is not reflected in the content of the document evaluation. Such a method of examination is inappropriate in that it would lead to the credibility of the document evaluation conducted by one of them.

⑤ Other points that can be given according to the subjective criteria of an interview officer are allocated to the Plaintiff’s score 20 points. Considering that the score is considerably significant, and there are no detailed criteria for evaluation, the above point 20 points are points that can be given at will by an interview officer. However, in light of the fact that the interview officer was the head of the Plaintiff and another childcare center in the course of employing childcare teachers, and the Plaintiff already expressed an intention to give disadvantages to childcare teachers who made the instant public interest report, there is considerable doubt as to whether the above other points were evaluated objectively and fairly. In fact, the intervenor received remarkably lower points than the successful applicants in total of 48 points from other points.

6. Furthermore, according to the Defendant’s investigation, the additional points imposed on the qualification certificate that is not directly related to the operation of the pertinent child care center are excluded, and the intervenor enters the order of pass when three examiners add up the document evaluation points. The defendant’s examination results shows that the assignment of points based on the result of the investigation is reasonable.

3) In full view of the aforementioned circumstances, it is reasonable to view that the Intervenor was subjected to disadvantageous measures in relation to the status of the Plaintiff’s child care teacher who was deprived of the employment process of the instant child care teacher due to the instant public interest report. Therefore, the instant disposition that taken disadvantageous measures against the Plaintiff is lawful.

4. Conclusion

Therefore, the plaintiff 2's lawsuit is unlawful and thus, it is dismissed. The plaintiff 1's claim is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment] Results of Document Evaluation Points: Omitted

Judges Park So-young (Presiding Judge)