Where a dismissal disposition is null and void, whether the entire wage can be claimed during the period (affirmative)

In a case where dismissal disposition is null and void, the labor contract relation is still in force, and even though the worker was not provided with labor due to the cause attributable to the employer, the worker can claim the payment of all wages which the worker would have received when he continued to work.

Article 538(1) of the Civil Act, Article 36 of the Labor Standards Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Park Jong-soo and 1 other, Counsel for plaintiff-appellant)

[Plaintiff-Appellant-Appellee] Plaintiff 1 and 1 other (Law Firm Han, Attorneys Park Dong-young et al., Counsel for plaintiff-appellant-appellee)

Plaintiff

Young Chang-Mak Manufacturing Co.

Seoul High Court Decision 92Na14337 delivered on July 22, 1992

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

In a case where a dismissal disposition against an employer is null and void, the labor contract relation has been effective during that period, notwithstanding the fact that the employee was unable to provide his labor due to a cause attributable to the employer, and thus, the employee may claim payment of the entire amount of wages that the employee may receive when he continued to provide (see, e.g., Supreme Court Decisions 81Da626, Dec. 22, 1981; 87Da2566, May 23, 1989; 91Da25277, May 14, 1991; 90Da18999, Dec. 13, 191; 90Da8673, Mar. 31, 1992; 210Da210, May 22, 1992).

The judgment of the court below is based on its evidence that the defendant company's employees worked overtime hours as stated in its average monthly period from July 1, 1988 to March 20, 191, and that the collective agreement entered into between the defendant company and its labor union provides that workers may work overtime for not more than 12 hours a week by agreement between the parties concerned and the defendant company and its labor union, and it is confirmed that if the plaintiff had not been dismissed, he will work overtime hours to the extent as stated in its reasoning from July 1, 198 to March 20, 191, and will be paid an overtime allowance for more than 12 hours a week from March 21, 191. The judgment of the court of first instance that included the overtime allowance in calculating the wages that the plaintiff was dismissed. In light of the records, the above measures are just and acceptable, and there is no violation of law by misunderstanding legal principles or incomplete deliberation or rules of evidence, as pointed out otherwise.

In addition, the judgment of the first instance, cited by the judgment of the court below, judged that continuous service allowances paid by the defendant company to its employees are paid periodically and regularly each month, and included in ordinary wages, which is the basis for calculating overtime work allowances, is just and acceptable in light of the records, and there is no error of law by misunderstanding the legal principles as

All arguments are groundless.

Therefore, the appeal is dismissed and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.