AbC Co., Ltd. (Law Firm AbS, Attorneys Lee Dong-movable et al., Counsel for the defendant-appellant)

The Chairman of the National Labor Relations Commission

(1) The Defendant’s Intervenor (Attorney Kim Jong-chul, Counsel for defendant-appellant)

April 8, 2016

1. On July 23, 2015, the National Labor Relations Commission rendered a revocation of a new trial decision as to the case of an application for a new trial on the unfair dismissal of Inn&C Co., Ltd. between the Plaintiff and the Defendant joining the Defendant.

2. The supplementary part of the costs of lawsuit shall be borne by the Intervenor, and the remainder shall be borne by the Defendant.

The same shall apply to the order.

1. Details of the decision on retrial;

A. The Plaintiff is a corporation established on January 8, 1996 and engaged in painting construction business, etc. using approximately forty-seven full-time workers, and the Intervenor joining the Defendant (hereinafter referred to as the “ Intervenor”) is a person who entered the Plaintiff Company on April 1, 2013 and worked as a painting.

B. On December 31, 2014, the Plaintiff failed to renew the employment contract with the Intervenor whose term of the employment contract expires between the Plaintiff and the Intervenor (hereinafter “instant termination of the employment contract”).

C. On February 13, 2015, the Plaintiff asserted that the termination of the instant labor contract constitutes unfair dismissal, and filed an application for remedy with the Busan Regional Labor Relations Commission on February 13, 2015. On April 10, 2015, the Busan Regional Labor Relations Commission received the Intervenor’s request for remedy on the ground that the Intervenor has a legitimate expectation for the renewal of the labor contract, and that there is no reasonable ground for the Plaintiff’s refusal to renew the labor contract.

D. On May 14, 2015, the Plaintiff dissatisfied with the foregoing initial inquiry tribunal and applied for reexamination to the National Labor Relations Commission. However, on July 23, 2015, the National Labor Relations Commission dismissed the Plaintiff’s application for reexamination on the same ground as the foregoing initial inquiry tribunal (hereinafter “instant initial inquiry”).

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1 and 2, the purport of the whole pleadings

2. Whether the decision on the retrial of this case is lawful

A. The plaintiff's assertion

From February 14, 2011 to December 31, 2012, the Plaintiff employed an intervenor as a fixed-term worker and terminated a labor contract relationship with the intervenor due to the aggravation of management conditions, but employed the intervenor as a fixed-term worker upon the Intervenor’s request from Nonparty 1 on April 1, 2013 to December 31, 2014. As such, the intervenor whose continuous work period is one year and nine months cannot be deemed to have been converted to an inorganic contract worker pursuant to Article 4(2) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (hereinafter “Period Act”). There is no provision on the renewal of the labor contract between the Plaintiff and the Intervenor, the Plaintiff’s rules of employment, the regulations on the management of the employee in the daily contract, etc., and the Plaintiff’s right to renew the labor contract from February 14, 201 to December 31, 2014 is not recognized as unlawful.

B. Relevant provisions

It is as shown in the attached Form.

C. Facts of recognition

1) An intervenor: (a) from April 1, 2001 to November 21, 2001; (b) from August 4, 2006 to December 19, 2006; (c) from October 12, 2009 to December 31, 2009; and (d) from January 4, 201 to January 30, 201; and (v) from February 14, 201 to December 31, 2012; and (vi) from April 1, 201 to December 31, 201 to December 31, 201, the intervenor worked for the Plaintiff Company as an official seal.

2) On February 14, 2011, an intervenor drafted a fixed-term employment contract with the Plaintiff (hereinafter “the first contract”) and the main contents of the first contract are as follows.

The term of contract specified in the main sentence of Table 1. The term of contract: from February 14, 201 to December 31, 2011 (Provided, That the time until the completion of the relevant construction works is the same as the date of the completion of the construction works): Seal 3. Work site: 4. b. Wage shall be the daily rate (8 hours) and shall be KRW 130,000; 5. Termination of the contract and preferential employment; (b) The contract shall be automatically terminated without any separate measure taken on the day when the contract expires; (b) A (referring to the Plaintiff) may suspend and terminate the contract depending on the seriousness of the failure to comply with the order of work instruction and safety regulations, labor management instruction, defamation company, company property removal without permission, or any other direction. With respect to matters not specified in this contract.

3) From January 1, 2012 to February 29, 2012, an intervenor worked without preparing a separate employment contract between the Plaintiff and the Plaintiff, and prepared a fixed-term employment contract between the Plaintiff and the Plaintiff on February 29, 2012, setting the contract period from March 1, 2012 to December 31, 2012 (hereinafter “second contract”), and the remainder of the second contract, excluding the contract period, are as the first contract.

4) The Plaintiff is a foreign partner established to carry out the painting of the machinery and equipment of the Poco Poco Co., Ltd., and is exclusively engaged in the painting work on the Poco facilities. As the annual sales of Poco decreased from 2011, the amount of painting work contract for the Plaintiff was also reduced. From 2010 to 2014, the sales, gross sales, operating profits, net income, fixed-term employees, and fixed-term employees of the Plaintiff company (based on June each year) are as follows.

Table sales, gross sales, operating profits, and net income units contained in the main sentence: 9,280,424 8,747 9,232 8,094 gross sales profit 2,065 3,020 1,516 1,511,649 operating income 432 1,203,460 460 460 467 net income 608 4975 4984 384 4984,42,416 26,261,440 fixed-term workers (based on June 26, 201) in 2012, classified as KRW 1,511,649 432,203 460 460 467 net income.

5) On December 14, 2012, the Plaintiff held a regular labor-management council on the fourth quarter of 2012, and the said labor-management council decided to replace the number of the Plaintiff Company on the ground that the seal budget in 2013 was scheduled to reduce the number of employees by 30% compared to the performance result in 2012. Accordingly, the Plaintiff Company established a plan for rationalizing the number of employees to reduce the total number of employees from 85 to 62 employees and reduce the total number of employees from 85 to 62 employees and the incidental expenses.

6) On December 22, 2012, Plaintiff 6 and Nonparty 2, including the Plaintiff, notified 18 fixed-term workers whose contract term expires on December 31, 2012. At the time, Nonparty 7’s age was 58, Nonparty 8, Nonparty 9, and Nonparty 10, 60, and Nonparty 12’s age was 62 years of age, and Nonparty 13’s existing employment period was 7 months from May 23, 2012 to December 31, 2012.

7) On January 1, 2013, the Intervenor received KRW 6,305,360 as retirement allowance for the period from February 14, 2011 to December 31, 2012.

8) On January 26, 2012 and 27 of the same month, the Plaintiff conducted a special health examination for 64 on-site workers including intervenors (16 on-site workers, 18 on-site workers, including intervenors, and 9 on-site workers, at the Plaintiff’s head office and the hospital of the place of residence in the racing, and at the hospital of the place of residence in the racing. On February 8, 2013, 2013, the Plaintiff conducted a special health examination for 46 on-site workers (4 on-site workers, including 16 on-site workers, 16 on-site workers, and 1 on-site workers) who are not included in the Intervenor in the hospital of the place of residence in the racing and the place of residence in the racing.

9) On April 1, 2013, an intervenor prepared, respectively, a fixed-term employment contract between the Plaintiff and the Plaintiff during the contract period from April 1, 2013 to March 31, 2014 (hereinafter “third contract”) and a fixed-term employment contract between April 1, 2014 and December 31, 2014 (hereinafter “fourth contract”). The details of the third and fourth contracts, excluding the part regarding the contract period and the part regarding wage of KRW 140,000 per day, are as the first contract.

10) On March 20, 2013, the Plaintiff conducted a health examination of “employment + pre-employment” with respect to Nonparty 3 and intervenors at the Hospital of Dopo-si, Dopo-si, Dopo-si, and on January 3, 2014, the Plaintiff conducted a special health examination for workers in 2014 for 48 on-site workers (including 16 on-site workers, 15 on-site workers, and 5 on-site workers, including the intervenors and Nonparty 3).

11) On April 1, 2013, the Plaintiff provided eight-hour new employment safety and health education to Nonparty 3 and the Intervenor.

12) On November 25, 2015, the Plaintiff’s representative director, Nonparty 15, Nonparty 5, Nonparty 16, and Nonparty 2, the head of △△△△ Division Nonparty 16, and Nonparty 2: (a) the Plaintiff Company did not have to obtain a sufficient contract amount; and (b) there was no need to additionally employ seals; but Nonparty 15 requested Nonparty 1 to employ the Intervenor from Nonparty 1, the representative of the labor-management council, who is the Intervenor, on April 1, 2013; and (c) Nonparty 5 and Nonparty 2, at the recruitment interview with the Intervenor on March 2013, 201, sent Nonparty 1’s seal to Nonparty 4, who was Nonparty 140,00, to the effect that “If the contract period expires at once, Nonparty 5 and Nonparty 2 would request the Intervenor to carry out the Plaintiff’s work at the level of KRW 140,000,00,000 of the Intervenor’s salary.”

13) The Plaintiff company’s painting work is to be carried out in the way of painting by using rollers, etc. The Plaintiff company’s painting work is to be carried out in the way of painting, etc. The Plaintiff company’s painting work is to carry out by removing the corrosion portion generated in the steel structure of the steel mill because one tank consisting of 2 sand cover and 1 mixed covering of sand in the compressing air, and then the corrosion portion generated in the steel structure of the steel yard is to be removed. Small-scale facilities the painting of which is impossible in the form of painting shall be carried out in the way of painting by using rollers, etc. The ratio of the painting hole: 2:1, if there is a vacancy of 2:00 won in the form of mixing: two surplus manpower; average 13:140,000 won in the form of sand sheet and painting; and, in the event of mixing work, average 80,000 won in the form of mixing, and thus, 50,000 won in the event of mixing work is to be carried out.

14) Although Plaintiff Company had employed 16 and 8 mixing companies in 2012, Plaintiff Company, a fixed-term worker, including Nonparty 13, Nonparty 17, Nonparty 18, and Nonparty 3, retired due to the expiration of the contract period on December 31, 2012, thereby causing 8 surplus manpower of the mixing company. Although some of the sand would have engaged in mixing work, even if the two companies consisted of 6 companies, one mixing company was required to further form one set. Accordingly, around March 2013, Plaintiff Company’s management obtained additional recruitment from Nonparty 16 of the △△△△△ branch and approved the additional employment of mixing with the goods, and made the mixing on April 13, 2013.

15) The Plaintiff concluded a fixed-term employment contract between March 28, 201 and December 31, 2011; the term of the contract from February 29, 2012 to December 31, 201; the term of the contract from March 1, 2012 to December 31, 2012; the term of the contract from April 1, 2013 to March 31, 2014; and the term of the contract from April 1, 2013 to March 31, 2014 to April 1, 2014; and the Plaintiff concluded a fixed-term employment contract between April 1, 2014 to December 31, 2014 to a indefinite worker, respectively.

16) After the end of December 30, 2014, the Plaintiff concluded a fixed-term employment contract between Nonparty 19 and Nonparty 19 on January 13, 2015, setting the contract term from January 13, 2015 to June 30, 2015.

17) On August 18, 2014, the Plaintiff concluded a fixed-term employment contract between the painting Nonparty 4 with the term of contract from August 18, 2014 to December 30, 2014; January 27, 2015, the term of contract from January 27, 2015 to October 31, 2015; and October 30, 2015, respectively, with the term of contract fixed from November 1, 2015 to June 30, 2016.

18) The National Labor Relations Commission held a hearing on July 15, 2015. At the hearing of the above hearing, the intervenor stated to the effect that “I will continue to be employed on a job and did not know any other occupation,” and that “I will know any other occupation” was “I will receive notification from the intervenor including a fixed-term worker on December 22, 2012, with the head of the division of the division of the division of the division of the division of the division of the division of the division of the division of the division of the division of the division of the division of the division of the division of the division of the division of the division of the division of the division of the division of the division of the division of the division of the division of the division of the division of the division of the division of the division of the division of the division of the division of the division of the division of the division of the division.”

[Reasons for Recognition] A without dispute, Gap's testimony, Gap's testimony, non-party 5's testimony, the whole purport of oral argument, and the whole purport of oral argument

(d) Markets:

1) Whether the labor contract relationship between the intervenor and the plaintiff was terminated between January 1, 2013 and March 31, 2013

A) The instant decision on reexamination was repeatedly renewed five times from February 14, 201 to December 31, 2014, on the grounds that the intervenor engaged in the same business at the same place during the said period, and determined that the intervenor has a legitimate expectation right to renew the employment contract. As to this, the Plaintiff’s employment relationship between the intervenor and the Plaintiff was terminated for three months from January 1, 2013 to March 31 of the same year, and thus, the existence of the Intervenor’s renewal right should be determined by considering the employment contract relationship after April 1, 2013, and the Intervenor’s renewal right has been asserted from February 14, 201 to December 31, 2014 to December 31, 2014 to December 31, 2014 to December 31, 2014 to December 31, 2013, as the Intervenor’s employment contract relationship between the intervenor and the Intervenor was converted into a fixed-term worker under Article 4(2)31(3) of the Act.

B) Where a labor contract is renewed upon the expiration of the term of the labor contract and the term of the labor contract is renewed or repeatedly concluded on the same condition, the determination on whether to continue the labor contract and the term of the labor contract shall be made after adding up the renewed or repeated term of the labor contract. Even if there is a certain gap between the renewed or repeated term of the labor contract, the term of the labor contract shall not be longer than the total term of the labor contract, and where it is recognized that there are reasonable grounds for not providing labor or not paying wages during the term of the pertinent work, such as seasonal factors, vacation period, etc., or rest period for standby and loyalty, etc., and there are reasonable grounds for not paying wages during the pertinent term of the labor contract, it shall be deemed that the continuity of the labor contract remains even during the period (see, e.g., Supreme Court Decisions 2004Da29736, Dec. 7, 2006; 20Da58490, Dec. 9, 2010; 3509Da4040, Apr. 14).

C) Comprehensively taking account of the following circumstances revealed in light of the purport of the entire pleadings, it is reasonable to view that the labor relationship between the intervenor and the plaintiff was terminated on December 31, 2012 as the expiration of the period of validity on December 31, 2012, and that the intervenor and the plaintiff were newly commenced by concluding a contract on April 1, 2013, which is the following day. Therefore, it cannot be deemed that the intervenor was converted to an indefinite contract worker under Article 4(2) of the Fixed-term Act, and whether the intervenor’s right to renew is recognized should be determined by taking into account the circumstances from April 1, 2013, which is the date of the conclusion of the third contract.

(1) ① On December 31, 2012, the Plaintiff was notified that the 2013-year contract volume will decrease by 30% compared to that of 2012, and decided through the labor-management council that the contract period will not be renewed with 18 fixed-term workers including the Intervenor that terminated on December 31, 2012, and notified the termination of the employment contract to the above fixed-term workers on December 22, 2012, and ② at the National Labor Relations Commission hearing of the National Labor Relations Commission, the Intervenor stated that “the 20-year contract period will expire on 10,000,000,000,000,0000,0000,00000,0000,0000,0000,0000,0000,0000,0000,0000,0000,0000,000,0000.

(2) ① On February 2013, Plaintiff Company: (a) prepared a written statement to the effect that Nonparty 2 had been employed by 16, 16, 16, and 4 mixings as of February 2013; (b) Nonparty 2, including Nonparty 15, 16, and 16, were employed by Nonparty 2 on the part of Nonparty 1, who had been employed by Nonparty 3 on April 1, 2013; (c) the Plaintiff had been employed by 15 on the part of Nonparty 3 on the part of Nonparty 2, who had been employed by Nonparty 1 on the part of Nonparty 3 on the part of Nonparty 1, who had been employed by Nonparty 2 on the part of Nonparty 2 on the part of Nonparty 1, who had been employed by Nonparty 3 on the part of Nonparty 1 on the part of Nonparty 2 on the part of Nonparty 2 on the part of Nonparty 3 on the part of Nonparty 1 on the part of Nonparty 2 on the part of Nonparty 1 on the part of Nonparty 2.

(3) Even if the Plaintiff Company had conducted the painting work on the basis of low temperature, etc., in a relatively small amount of less than the period of 1 and February each year, the Plaintiff has employed an intervenor from January 4, 2010 to January 30, 2010, maintained the labor contract with the intervenor from January 1, 2012 to February 29 of the same year, and included 1 and 2 months during the third labor contract period (from April 1, 2013 to March 31, 2014). The Plaintiff did not decrease 21 to 23 fixed-term workers from January 3, 2012 to March 31, 2012, and the Plaintiff did not conclude the contract with Nonparty 2, 201 to 31, excluding the remaining fixed-term workers, after which the Plaintiff did not conclude the contract with Nonparty 31 to 21, 201.

(4) On July 1, 2007, the enforcement date of the Fixed-term Workers Act, the Plaintiff had employed fixed-term workers for not less than one year for not less than six months and did not have concluded a two-year employment contract that seems to avoid the provision on the transition of fixed-term workers under the Fixed-Term Workers Act, such as employment again for not less than one year, and the Plaintiff may employ fixed-term workers at least 55 years of age as fixed-term workers pursuant to the proviso of Article 4(1)4 of the Fixed-term Workers Act, and in case of Nonparty 13, the existing employment period was merely 7 months and could continue to be a fixed-term worker, but it did not have concluded a new employment contract for not less than 18 fixed-term workers, including the above 7 fixed-term workers, from the beginning, in light of the fact that the Plaintiff did not report the termination of the employment contract and did not renew or renew the employment contract.

2) Whether the intervenor's right to renew has been recognized

A) In principle, in the case of an employee who has entered into an employment contract for a fixed period, the status of the employee as an employee shall be naturally terminated upon the expiration of the fixed period and if the employee fails to renew the employment contract, the employee shall be automatically dismissed even if the employee does not express his/her intention of refusal to renew the employment contract. However, even if the term expires in the employment contract, employment rules, collective agreement, etc. provide that the relevant employment contract shall be renewed upon the fulfillment of certain requirements despite the expiration of the term, or taking into account various circumstances surrounding the relevant employment contract, such as the motive and circumstance for the employment contract to be renewed, the standards for renewal of the employment contract, etc., the establishment of the requirements or procedure for renewal of the employment contract, the actual condition thereof, and the contents of the work performed by the employee, etc., if the parties to the employment contract have formed a trust relationship that the employment contract shall be renewed upon the fulfillment of certain requirements, and if the employer's legitimate expectation right to unfairly refuse the employment contract in violation thereof is recognized as the same as the renewed employment contract (see Supreme Court Decision 2009Du7659, Sept. 8, 2019, 2019.

B) Meanwhile, in a case where a fixed-term worker is granted the right to renew and the right to renew is recognized, the standard point of determining the legitimacy of the employer’s rejection of renewal shall, in principle, be based on the time of the employer’s rejection of renewal, that is, at the time of the termination of the fixed-term employment contract, at the time of the termination of the fixed-term employment contract. In particular, in determining whether to grant the right to renew, it shall be determined by taking into account

C) However, in full view of the following circumstances revealed in addition to the purport of the entire pleadings, it cannot be deemed that there was a legitimate expectation relationship that an intervenor may renew a labor contract even if the contract term stipulated in the fourth labor contract expires.

(1) The third and fourth contracts concluded between the intervenor and the plaintiff stipulate that the above contracts shall be automatically terminated on the date when the contract expires, and do not stipulate any provision on the renewal of the contract or the conclusion of the renewal of the contract. The plaintiff's rules of employment and the management regulations for the employee in the daily employment contract shall be automatically retired at the expiration of the contract, and there is no provision on the purport that the contract shall be renewed upon the expiration of the contract, or no provision on the requirements or procedures for renewal, such as the criteria for the renewal of the contract, is provided.

(2) In light of the fact that the Plaintiff did not have a managerial need to additionally employ the seal, and that Nonparty 5 and Nonparty 2 were employed by Nonparty 1’s request, and that at the time of the interview on March 2013, Nonparty 5 and Nonparty 2 stated that “the Intervenor would have increased the daily wage of the Intervenor because it would not extend the contract” from the Intervenor, and that the Intervenor increased the daily wage of the Intervenor from KRW 130,000 to KRW 140,00,000, the Intervenor and the Plaintiff agreed to increase the daily wage of the Intervenor instead of the extension of the contract.

(3) Although the Fixed-term Employment Act does not have any provision on the requirements for the renewal or re-issuance of a fixed-term employment contract, it does not limit the number of times of concluding a fixed-term employment contract. However, since the fixed-term employment contract newly concluded after the enforcement of the Fixed-term Employment Act is expected to be terminated within two years, and the right to expect the renewal of a fixed-term employment contract may not be recognized until the total period of employment exceeds two years. As of December 31, 2014, which is the expiration date of the 4 fixed-term employment contract, the Intervenor’s existing employment period is one year and nine months, which is less than three months, it is difficult to expect that the Plaintiff’s employment contract is renewed because the total period of employment exceeds the amount of the Plaintiff company’s contract compared to other periods.

(4) As long as the Plaintiff re-employed Nonparty 3, 19, and 4 for whom the contract period expires on December 31, 2014, the Intervenor asserts that the Intervenor also has the right to expect the renewal of the contract. However, around January 2015, the contract period between Nonparty 3 and Nonparty 19 expires, the Plaintiff Company was working for 15 and mixing 5, and thus, there was a need for re-employment of Nonparty 3 and Nonparty 19 for the formation of the work group. Nonparty 4 was merely for 3 months of the existing work period and can continue to be employed as a fixed-term worker. Thus, the right to renew the contract is not recognized solely on the ground that the Intervenor re-employed the said worker.

3) As long as an intervenor’s right to expect renewal of an employment contract is not recognized, the employment relationship between the intervenor and the Plaintiff was terminated upon the expiration of the period on December 31, 2014, and the instant decision on reexamination was unlawful.

3. Conclusion

Therefore, the plaintiff's claim of this case is reasonable, and it is so decided as per Disposition.

[Attachment]

Judges Kim Yong-chul (Presiding Judge)

(1) In the case of Nonindicted 14, the list of persons subject to health examinations on February 8, 2013 (Evidence A26), and the list of persons subject to health examinations on January 3, 2014 (Evidence A27) are indicated as “maintenance Support,” but the list of those subject to health examinations on January 3, 2014 (Evidence A31) and the list of those subject to health examinations on January 26, 2012 (Evidence A5) are indicated as “mixing,” and thus, they are deemed as mixings.