Whether a fixed-term worker is included in the period of restriction on use of two years under Article 4(2) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers to the extent that the employer has unfairly refused to renew his/her employment contract, and the right to expect the renewal of the contract exists (affirmative)

Article 4 of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (hereinafter “fixed-term Act”) provides that “Any employer may employ a fixed-term worker within the extent not exceeding two years (in cases of the repeated renewal of a fixed-term employment contract, the total period of his/her continuous employment does not exceed two years).” The proviso to paragraph (1) provides that “If an employer employs a fixed-term worker in excess of two years despite the absence or extinguishment of the grounds under the proviso to paragraph (1), the fixed-term worker shall be deemed an employee who has entered into an employment contract without a fixed period of time.”

Even in a case where a labor contract is concluded with a fixed period of time, if certain requirements are met, notwithstanding the expiration of the term of the labor contract, employment rules, collective agreement, etc., or if there is no such provision, in full view of various circumstances surrounding the labor relationship in question, the trust of trust between the parties to the labor contract has been formed that the labor contract will be renewed if certain requirements are met, so the employer may renew the labor contract accordingly, the employer’s refusal of the labor contract unfairly in violation of the above provision has no effect like the unfair dismissal, and the labor relationship after the expiration of the term is the same as the renewal of the previous labor contract.

Considering the purpose of protecting fixed-term workers under the fixed-term employment law, and the effect of the employer’s unfair rejection of renewal, it should be deemed that the period during which an employee was actually unable to provide labor due to the employer’s unfair rejection of renewal is included in the period of restriction on the use of two years under Article 4(2) of the Fixed-term Employment Act to the extent that

Article 4 of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers

Supreme Court Decision 2014Du45765 Decided November 10, 2016 (Gong2016Ha, 1930)

Plaintiff (Attorney Kim Sang-hoon, Counsel for the plaintiff-appellant)

Han Bank Co., Ltd. (Attorneys Son Ji-yol et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2013Na13841 decided October 16, 2013

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. Article 4(1) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (hereinafter “ Fixed-Term Act”) provides that “An employer may employ a fixed-term worker within the extent not exceeding two years (in the case of the repeated renewal of a fixed-term employment contract, the total period of continuous employment shall not exceed two years).” The proviso of paragraph (1) provides that “If an employer employs a fixed-term worker more than two years despite the absence or extinguishment of the grounds under the proviso of paragraph (1), the fixed-term worker shall be deemed an employee who has entered into an employment contract without a fixed period of time.”

In a case where a labor contract is concluded with a fixed period of time, if certain requirements are met, regardless of the expiration of the term of the labor contract, employment rules, collective agreement, etc., or if there is no such provision, in full view of various circumstances surrounding the labor contract, the trust between the parties to the labor contract is formed that the labor contract will be renewed if certain requirements are met, and thus the right to expect the renewal of the labor contract may be renewed accordingly, the employer’s unfair refusal of the labor contract in violation of the above provision is invalid as it is unfair, and the labor relation after the expiration of the term is the same as the renewal of the previous labor contract (see Supreme Court Decision 2014Du45765, Nov. 10, 2016, etc.).

Considering the purpose of protecting fixed-term workers under the fixed-term employment law, and the effect of the employer’s unfair rejection of renewal, it should be deemed that the period during which an employee was actually unable to provide labor due to the employer’s unfair rejection of renewal is included in the period of restriction on the use of two years under Article 4(2) of the Fixed-term Employment Act to the extent that

B. According to the reasoning of the lower judgment and the evidence duly admitted, the following facts are revealed.

(1) On November 1, 2002, the Plaintiff entered into an employment contract with a foreign exchange credit card company (hereinafter “foreign exchange credit card”) as one-year contract period, and entered as a professional staff, and renewed the above employment contract with a one-year contract period on November 1, 2003. The Defendant succeeded to the Plaintiff’s employment while absorbing the foreign exchange credit card on March 2004. Thereafter, the Plaintiff and the Defendant continued to renew the said employment contract by setting the contract period as six months, one year, one year, two months, and three months, respectively.

(2) As of June 2007, the Defendant, among fixed-term workers whose contract period expires in the second half of 2007, prepared a "contract renewal and termination management proposal" to select employees whose comprehensive evaluation score for the last one year is less than 80 (personal accidents and less than class C) as those subject to termination of contract. Accordingly, the Defendant conducted a comprehensive evaluation for fixed-term workers whose contract period expires in the second half of 2007 including the Plaintiff.

(3) Based on the comprehensive evaluation score based on the guidelines for contract employees that came into effect on July 1, 2007, the Defendant notified the Plaintiff that the contract should be terminated on September 30, 2007, on the ground that the Plaintiff constitutes an employee with less than 80 overall evaluation score set out in the proposal for contract renewal and termination (hereinafter “the first rejection of renewal”). The Plaintiff was rendered a remedy by filing an application for remedy with the Seoul Regional Labor Relations Commission on the ground that the first rejection of renewal constitutes unfair dismissal, and the Defendant appealed against the application for reexamination with the National Labor Relations Commission, but the application for reexamination was dismissed. Although the Defendant filed an administrative litigation, the judgment against the Plaintiff on December 24, 2009 became final and conclusive.

(4) As a result of the above lawsuit, the Plaintiff reinstated to the Defendant, and entered into a labor contract with the Defendant on December 24, 2009, setting the term of the contract from December 24, 2009 to December 23, 2010. Thereafter, the Plaintiff and the Defendant were to renew each of the above labor contract for six months from December 24, 2010 to June 23, 201 and three months from June 24, 2011 to September 23, 201 (hereinafter referred to as “instant labor contract”).

(5) On August 23, 2011, the Defendant notified the Plaintiff that the instant employment contract is terminated as of September 23, 201, on the ground that the instant case constitutes an employee with an average of not more than 82.5 points set forth in the standards for the selection of indefinite contract workers, based on the comprehensive evaluation results (hereinafter “instant refusal”).

C. In light of the above facts in light of the legal principles as seen earlier, the Defendant’s first renewal refusal is invalid as unfair dismissal, and there is no reason to deem that the Plaintiff’s right to expect the renewal of the contract does not continue to exist after the first renewal. Thus, the period during which the Plaintiff was actually unable to provide labor due to the first renewal refusal shall be included in two years from the restriction period under Article 4(2) of the Fixed-Term Act. Thus, the Defendant used the Plaintiff more than two years from July 1, 2007, which is the first contract date after the enforcement of the Fixed-Term Act. Thus, at the time of the refusal of renewal, the Plaintiff shall be deemed an employee who entered into an employment contract without a fixed period of time pursuant to Article 4(2) of the Fixed-Term Act. Accordingly, the refusal of the renewal of the contract of this case, which the Defendant notified the termination of the contract due to the expiration

The court below is justified in holding that the defendant's rejection of renewal of this case is null and void, while it is not proper to state its reasoning. In so doing, the court below did not err by misapprehending the legal principles on the interpretation of the period of restriction on use under Article 4 (2) of the Fixed Period Act

2. As to the remaining grounds of appeal

This part of the ground of appeal is with regard to the court below's assumptive judgment, and as seen earlier, the court below's determination as to whether the plaintiff is regarded as an employee without a fixed period of time does not affect the conclusion of the judgment, and therefore, it is without merit to further examine.

3. Conclusion

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 on the bench.

Justices Lee Ki-taik (Presiding Justice)