[1] Where an employer’s unfair dismissal disposition is invalidated or cancelled, the scope of wages for which the employee may claim payment

[2] In a case where Gap et al. worked at Gap incorporated foundation and returned to Eul et al. continued to work against Gap corporation, the case holding that the court below erred by misapprehending legal principles in holding that it is difficult to view Eul's wages as a matter of course during the period of dismissal under the premise that overtime work allowance is paid in actual work

[1] Article 538(1) of the Civil Act, Article 2(1)5 of the Labor Standards Act, Article 6(1) of the Enforcement Decree of the Labor Standards Act / [2] Article 538(1) of the Civil Act, Articles 2(1)5 and 56 of the Labor Standards Act, Article 6(1) of the Enforcement Decree of the Labor Standards Act

[1] Supreme Court Decision 2011Da20034 decided Feb. 9, 2012 (Gong2012Sang, 427)

Plaintiff (Law Firm Barun Law, Attorneys Soh Ho et al., Counsel for the plaintiff-appellant)

Seongbuk-si Youth Foundation (Law Firm LLC, Attorneys Kim Young-soo et al., Counsel for the defendant-appellant)

Suwon District Court Decision 2019Na74065 Decided January 22, 2020

The part of the lower judgment regarding overtime work allowance shall be reversed, and that part of the case shall be remanded to the Suwon District Court. The remainder of the appeal shall be dismissed.

The grounds of appeal are examined.

1. Determination on grounds of appeal Nos. 1 and 2

On the grounds indicated in its reasoning, the lower court upheld the first instance judgment rejecting all of the Plaintiff’s confirmation of invalidity of dismissal and the allegation on payment of unpaid wages on the ground that the grounds for the dismissal of the instant case was recognized and the dismissal of the instant case cannot be deemed to

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine on grounds for disciplinary action and illegality of disciplinary decision, thereby adversely affecting the conclusion

2. Judgment on the third ground for appeal

A. In a case where an employer’s unfair dismissal disposition is invalidated or cancelled, the status as an employee who intends to be damaged has continued to exist, and the failure to provide labor between them is attributable to the employer, and thus, an employee may claim payment of the entire amount of wages that may be received when he/she continued to work pursuant to Article 538(1) of the Civil Act. Here, the wage for which an employee may claim payment refers to the wage prescribed in Article 2 of the Labor Standards Act. As such, if the employer continues to and regularly pays all the amount of wages that he/she pays to an employee as remuneration for work and if the obligation to pay is cancelled by collective agreements, rules of employment, wage regulations, labor contracts, labor contracts, labor practices, etc., regardless of the name thereof, it shall be included in all, and it shall not be limited to ordinary wages (see, e.g., Supreme Court Decision 201

B. According to the records, the Defendant’s “overtime and holiday work allowance operation guidelines” recognizes the Defendant’s “overtime and holiday work hours” as the basic excess work hours each month, and stipulates that overtime work hours shall be limited to 12 hours a week a day (over or off). The Plaintiff received KRW 69,00 per month from the Defendant, from February 2013 to November 2014 (excluding January 2014), and received KRW 669,000 per month as a substitute even after he/she returned on March 2016. Meanwhile, the Plaintiff’s work or the Defendant’s circumstances do not confirm that there was no need to implement additional overtime work hours differently from the previous disposition period, or that other employees did not receive overtime work allowances due to lack of budget.

C. Examining the above facts in light of the legal principles as seen earlier, there is room to deem that the Plaintiff received KRW 669,000 per month as overtime work allowance except for the period during which the Plaintiff was unable to work as a previous disposition in the instant case, and thus, the above amount is included in the wages that the Plaintiff would have received when the Plaintiff continued to work. Therefore, the lower court should have specifically examined whether the Plaintiff could receive overtime work allowances within the limit of 10 hours per month when the Plaintiff continued to work during the instant past disposition period.

D. Nevertheless, the lower court determined that it is difficult to view it as wages that the Plaintiff could have naturally received during the period of dismissal on the premise that overtime work allowances exceeding the maximum of 10 hours per month are paid when the Plaintiff actually worked. In so determining, the lower court erred by misapprehending the legal doctrine on overtime work allowances, thereby affecting the conclusion of the judgment. The grounds of appeal assigning this error are with merit.

3. Judgment on ground of appeal No. 4

For reasons indicated in its holding, the lower court upheld the first instance judgment dismissing the Plaintiff’s claim on this part, on the ground that the Plaintiff was unable to receive the business performance rating in 2015, even if the instant past disposition was not made, based on the relevant regulations on business performance rating and work performance rating.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine on the subject of payment of performance-based pay.

4. Conclusion

Therefore, the part of the judgment below regarding overtime work allowance shall be reversed, and that part of the case shall be remanded to the court below for a new trial and determination. The remaining appeal shall be dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Noh Jeong-hee (Presiding Justice)