[1] In a case where Gap corporation's remuneration payment form for Eul et al. takes the form of daily wage system, but actually has been operated similar to the monthly wage system, and the method of calculating daily ordinary wage such as Eul et al. is at issue, the case holding that daily ordinary wage such as Eul et al. should be calculated first, by the method of calculating hourly ordinary wage, by multiplying the number of daily ordinary wage by the number of contractual work hours, and that if there are weekly holiday allowances including the remainder of the monthly ordinary wage paid to Eul et al., the weekly holiday allowance should be excluded from the calculation of ordinary wage

[2] Whether a pre-announcement of dismissal should be made in such a way that an employer can identify the time of dismissal or at any time when dismissal is made (affirmative)

[3] In a case where Gap corporation notified Eul et al. that "no longer work at Gap corporation's news center shall work" while requesting Eul et al. to conduct its business as a video news gathering personnel after completing business registration, the case affirming the judgment below holding that the above notification does not constitute the pre-announcement of dismissal in a way that specifies Eul et al. or knows the date of dismissal 30 days prior to the date of actual dismissal of Eul et al., and even if it falls under the pre-announcement of dismissal, it is not effective as a pre-announcement with the condition attached

[1] Article 2(1)5, 6, and 56 of the Labor Standards Act; Article 6(1), (2)4, and (3) of the Enforcement Decree of the Labor Standards Act / [2] Article 26 of the Labor Standards Act / [3] Article 26 of the Labor Standards Act

[2] Supreme Court Decision 2009Do1383 decided Apr. 15, 2010 (Gong2010Sang, 953)

Plaintiff 1 and seven others (Attorneys Choi Sung-ho et al., Counsel for the plaintiff-appellant)

Plaintiff 9

Korea Broadcasting System (Law Firm Samung, Attorneys Kim Young-soo, Counsel for the plaintiff-appellant)

Seoul High Court Decision 2010Na32339 decided June 10, 201

The part of the lower judgment against Plaintiffs 1, 2, 3, 4, 5, 6, 7, and 8 is reversed, and that part of the case is remanded to the Seoul High Court. The Defendant’s appeal is dismissed. The costs of appeal between Plaintiff 9 and the Defendant are assessed against the Defendant.

The grounds of appeal are examined.

1. As to the grounds of appeal by Plaintiffs 1, 2, 3, 4, 5, 6, 7, and 8

A. As to the second ground for appeal

According to the reasoning of the judgment below, the court below acknowledged facts based on its adopted evidence, and determined that since the plaintiffs' work is naturally expected to be holiday work due to its nature, and a wage payment contract was concluded based on the so-called comprehensive wage system with the content that the daily work is paid as a daily allowance for holiday work as well as holiday work as a daily work for Saturdays and Sundays, it is reasonable to view that weekly holiday work allowances are included in the daily allowance system that the plaintiffs received each month.

In light of the relevant legal principles and records, the above determination by the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles on weekly holiday allowances and comprehensive wage

B. As to the first ground for appeal

(1) According to the reasoning of the judgment below, the court below acknowledged the facts based on the adopted evidence that the ratio of overtime and holiday allowances to the daily allowances of the plaintiffs is not less than 20%, and the defendant's payment form of remuneration to the plaintiffs is practically similar to the daily wage system, but recognized the circumstances that have been actually operated similar to the monthly wage system. The court below determined that the plaintiffs' ordinary wages per day should be calculated by dividing the amount equivalent to 80% of the total daily allowances received by the plaintiffs during one year before their dismissal by the total number of days (365 days) during the pertinent period.

(2) Examining the relevant legal principles and records, the lower court’s determination that the forms of remuneration to the Plaintiffs have been operated similar to the monthly wage system is justifiable, and that the Plaintiffs’ extension and holiday allowance included in the Plaintiffs’ daily wage should be excluded from ordinary wages is recognized as 20% of the rate of overtime and holiday work allowances out of the daily wage. In so doing, contrary to what is alleged in the grounds of appeal, there were no errors by violating logical and empirical rules, exceeding the bounds of the principle of free evaluation of evidence, or by misapprehending the legal principles

(3) However, the part of the judgment of the court below regarding the above method of calculating ordinary wages divided by the total number of days (365 days) during the pertinent period is difficult to accept for the following reasons.

When calculating the amount of a monthly ordinary wage as an hourly wage, that amount shall be divided into the standard number of hours for the calculation of the monthly ordinary wage (one-half of the hours calculated by multiplying the standard number of hours for the calculation of the weekly ordinary wage by the average number of weeks per year), and when calculating the amount of a daily ordinary wage, the amount shall be calculated by multiplying the hourly amount calculated by such method by the number of contractual working hours per day (Article 6(2)4 and (3) of the Enforcement Decree of the Labor Standards Act).

Therefore, as seen earlier, if the Defendant’s form of payment of remuneration to the Plaintiffs takes the form of daily wage system, but actually has been operated similar to the monthly wage system, the Plaintiffs’ daily ordinary wage should be calculated first, and the amount should be calculated by means of multiplying the hourly ordinary wage by the number of contractual work hours per day. However, if the Plaintiffs’ monthly wage includes weekly holiday allowances, excluding the amount of overtime, night, and holiday work allowances, the said weekly holiday allowance should be excluded from the calculation of ordinary wage.

Nevertheless, the lower court calculated the daily ordinary wage by dividing the amount equivalent to 80% of the total daily wage received for one year before the dismissal by the total number of days (365 days) during the pertinent period without any special legal basis. In so doing, the lower court erred by misapprehending the legal doctrine on the calculation of ordinary wage, thereby adversely affecting the conclusion of the judgment. The Plaintiffs’ ground of appeal pointing this out has merit.

2. As to the Defendant’s ground of appeal

A. As to the first ground for appeal

According to the reasoning of the lower judgment, the lower court rejected the Defendant’s assertion that there was no obligation to pay annual leave allowances to the Plaintiffs on the ground that it is difficult to view that the Plaintiffs’ annual leave allowances are included in the annual leave allowances under the comprehensive wage contract, since the annual leave allowances are included in the monthly paid daily leave allowances.

In light of the relevant legal principles and records, the above determination by the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles on annual leave allowance and comprehensive wage

B. On the second ground for appeal

Article 26 of the Labor Standards Act provides that an employer shall give an advance notice of dismissal at least 30 days, and that an employer shall pay not less than 30 days’ ordinary wages if the employer did not give such advance notice before 30 days’ ordinary wages should be paid to an employee in preparation for dismissal. As such, the employer’s advance notice of dismissal should be made in a way that the employee can identify a certain point of time or at any time when dismissal is made (see Supreme Court Decision 2009Do1383, Apr. 15, 2010, etc.).

The court below held that, even if the defendant notified the plaintiffs that "if the business registration is not completed, he shall not work at the defendant's news center" when he requested the plaintiffs to conduct business as a video news gathering personnel after completing business registration on July 2007, the above notification by the defendant alone cannot be deemed that the defendant provided a pre-announcement of dismissal in a manner that specifies the date of dismissal or knows it from August 2, 2007 to the plaintiffs 30 days prior to the actual dismissal of the plaintiffs, and even if the above notification falls under the pre-determination of dismissal, it is not effective as a pre-announcement with the condition attached thereto.

The above determination by the court below is just in accordance with the legal principles as seen earlier, and there is no error in the misapprehension of legal principles as to the requirements for pre-determination of dismissal.

3. Conclusion

Without examining the remaining grounds of appeal by Plaintiffs 1, 2, 3, 4, 5, 6, 7, and 8, the part of the judgment below against the above plaintiffs is reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. The defendant's appeal is dismissed. The costs of appeal between Plaintiff 9 and the defendant are assessed against the defendant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)