(영문) 서울행정법원 2018.5.31.선고 2017구합83799 판결

The decision made by the National Labor Relations Commission on September 19, 2017 was revoked on September 19, 201, subject to the case of the application for reexamination of unfair dismissal by Central 2017, 739.

Reasons

1. Causes and details of the decision in the retrial;

A. The Plaintiff (hereinafter “Plaintiff”) is a company that employs not less than 3,00 workers on a regular basis and engages in telecommunications sales business, etc.

B. The Intervenor joining the Defendant (hereinafter referred to as the “ Intervenor”) concluded a labor contract with the Plaintiff Company on September 21, 2015, stipulating that the period from September 21, 2015 to March 20, 2016 should be “from September 21, 2015 to March 20, 2016,” and entered into an employment contract with the Plaintiff Company on March 21, 2016 to “the period from March 21, 2016 to September 30, 2016.”

C. On September 3, 2016: around 00, the Intervenor suffered injury in the 15th day of September 3, 2016, in which the Plaintiff Company was engaged in the delivery service of the Plaintiff Company’s home delivery service, from the cargo column of delivery vehicle to the ground where 20km away from the delivery vehicle in the form where delivery goods are stored, and the Intervenor suffered injury in the tear of the half-halfth day in the right side, and the right side panty (hereinafter “the occupational injury of this case”).

D. On October 1, 2016, the Intervenor entered into a labor contract with the term "from October 1, 2016 to March 31, 2017" (hereinafter referred to as the "third labor contract of this case"; hereinafter referred to as "each of the labor contracts of this case") under the terms "from October 1, 2016 to March 31, 2017, which was under medical care due to the instant occupational injury."

E. On March 20, 2017, the Plaintiff Company made a notification to the effect that the labor contract between the Plaintiff Company and the Intervenor is terminated on March 31, 2017 (hereinafter “instant notification”).

F. On April 27, 2017, the Intervenor filed an application for remedy with the Busan Regional Labor Relations Commission by asserting that the instant notification constituted unfair dismissal. On June 16, 2017, the Busan Regional Labor Relations Commission rendered a ruling dismissing the Intervenor’s application for remedy to the effect that “the Intervenor’s right to expect renewal of the labor contract is not recognized.” Therefore, the instant notification was justifiable.

G. On July 21, 2017, the Intervenor filed an application for review seeking the revocation of the said determination with the National Labor Relations Commission. On September 19, 2017, the National Labor Relations Commission revoked the said determination and issued a ruling ordering the Plaintiff Company to seek relief from the Intervenor (hereinafter referred to as the “instant ruling for reexamination”). The National Labor Relations Commission recognized the legitimate renewal right against the Intervenor, and there is no reasonable ground for the instant notification as a refusal to renew the labor contract.

[Grounds for Recognition] The non-contentious facts, Gap evidence Nos. 1, 2, 4, and 5, Eul evidence No. 2, and the purport of the body before oral argument

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

A. Summary of the plaintiff company's assertion

1) There is no provision that the labor contract, the rules of employment, and the collective agreement of this case provide that the labor contract of this case shall be renewed if certain requirements are met, and rather, each of the labor contracts of this case is terminated by the expiration of the term of validity. In addition, "the conversion of full-time workers and the guidance of contract process and standard" prepared by the Plaintiff Company is merely the guidance of the work process being conducted in the personnel sector, not the purport of the contract being renewed when certain requirements are met, such as the rules of employment. Furthermore, the Plaintiff Company does not have the right to renew the labor contract when the termination of the labor contract upon the expiration of the term of validity is ordinarily occurring. In light of these circumstances, the Intervenor is not recognized to have the right to renew the labor contract.

2) Even if the Intervenor’s right to renew the employment contract is recognized, considering the fact that the Intervenor did not have a physical condition to engage in the alternative delivery service at the time of the instant notice, it was impossible to evaluate the Intervenor who did not work one day at the time of the instant third employment contract, and that the Plaintiff Company’s demand for the alternative delivery service of the Plaintiff Company was reduced at the time of the instant notice, there is reasonable reason to refuse the Plaintiff Company’s refusal to renew the employment contract.

3) Therefore, the instant decision on review was unlawful.

B. Determination

1) Relevant legal principles

In principle, an employee who has entered into a labor contract with a fixed period of time shall naturally terminate his/her status as an employee upon the expiration of the term. However, even if the term expires in a labor contract, rules of employment, collective agreement, etc., the relevant employment contract shall be renewed upon the fulfillment of certain requirements, despite the expiration of the term, or, in full view of various circumstances surrounding the relevant employment contract even if there is no such provision, in a case where the trust between the parties to the labor contract has been formed that the labor contract shall be renewed upon the fulfillment of certain requirements, and where the legitimate expectation right to renew the labor contract is recognized as such, unfairly refusing the renewal of the labor contract in violation of such provision has no effect as unfair dismissal. In this case, the employment relationship after the expiration of the term of validity shall be deemed the same as the renewal of the previous labor contract (see Supreme Court Decision 2007Du1729, Apr. 14, 201, etc.).

2) Facts of recognition

The following facts may be acknowledged by adding the whole purport of the pleadings to each period of Gap evidence 7, Eul evidence 1 to 4, or each period of evidence No. 1 to Eul.

① The notice of employment for which the Plaintiff Company recruits the delivery engineer is indicated as “which can be extended or changed to regular workers through the contract evaluation of the work after serving for six months in the contract position of the Cub head office.”

② Each of the instant employment contracts is as follows:

Labor contract documents

(b) Centrality)

Article 5 Termination of Employment Contracts

B) Upon termination of the term of the employment contract, the employment relationship shall be naturally terminated, provided that at the time of termination of the contract

(2) If a separate notice or written contract is made, the contract period shall be extended or

may be converted to rule.

(hereinafter omitted)

③ The Intervenor filed an application for medical care benefits for occupational injury with the Korea Workers’ Compensation and Welfare Service on October 14, 2016, and obtained approval from the Korea Workers’ Compensation and Welfare Service (from September 3, 2016 to November 30, 2016). The Intervenor received medical care benefits for the period from September 3, 2016 to November 30, 2016. The Intervenor did not work at the Plaintiff Company for the period of the third labor contract of this case as medical care benefits for occupational injury of this case.

④ During one year prior to the instant notification, the contract renewal ratio of contractual employees, including the Plaintiff Company’s home delivery agent, shall be as follows:

A person shall be appointed.

⑤ On February 26, 2016, Plaintiff Company: (a) prepared and publicly announced the information and guidelines for converting the status of regular employees and extending the contract (hereinafter “instant guidelines”) with the following details.

Proces and criteria guidance for conversion into regular positions and extension of contracts;

(b) Centrality)

II. Information on the Process and Criteria for Review of Extension of Contracts

1. Process for examination on extension of a contract;

Notice (HR) ? Review of Extension of Contract ? Notice on Results ?

2. Standards for examination of extension of a contract;

2. 1 Observance of the business rules, accidents, regular evaluation results, dynamic interviews, CM/CO opinions, etc. comprehensively

We examine and determine whether to extend the contract.

2. Standards for two examinations:

6) The Plaintiff Company shall conduct a quarterly evaluation of customer satisfaction, delivery efficiency, etc. of selective delivery engineers. The results of quarterly evaluation by the Intervenor are as follows:

A person shall be appointed.

3) Whether renewal rights are recognized

A) Considering the following circumstances revealed through the above recognition, it is reasonable to view that there is a legitimate expectation that the labor contract may be renewed by an intervenor, since there has been a trust between the Plaintiff company and the participant that the labor contract is renewed upon meeting certain requirements.

1) ① Article 5(b) of each of the instant labor contracts and the content of the employment notice of the Plaintiff Company’s selective delivery delivery engineer is premised on the fact that the employment contract can be renewed, and it can be converted not only to regular employees.

② The Plaintiff Company prepared procedures and criteria for the renewal of an employment contract (the instant criteria), and uniformly applied them to contractual workers, such as door-to-door delivery service providers, regardless of whether they are the rules of employment. The instant standards specifically set the procedures for renewal of an employment contract, provide for the examination standards for the renewal of a employment contract, and provide detailed methods for the examination of the renewal of a employment contract, and reflects the results of the evaluation on the renewal of an employment contract on a quarterly basis. The Plaintiff Company set the procedures and standards for the renewal of an employment contract for a fixed period.

③ For one year prior to the instant notification, the contract renewal ratio of the contractual staff, including the Plaintiff Company’s home delivery service provider, exceeds 90%. In addition, in addition to the case where the contract renewal is not renewed due to the circumstances of the said renewal ratio, it appears that the contract is not renewed is an exceptional situation.

④ The Intervenor had already concluded two times of labor contracts by renewal, and one time of which was paid medical care benefits due to gratuitous injury to the instant business.

⑤ In light of the Plaintiff Company’s business operation, delivery services are considered to be conducted on a regular and continuous basis. Moreover, there is no circumstance to deem that the establishment of the term of employment contract for the Intervenor was conducted for the purpose of temporary entry of the Intervenor into the Intervenor.

B) We do not accept this part of the Plaintiff Company’s assertion.

4) Whether there is a reasonable ground for rejection of renewal

A) Considering the following circumstances that can be seen as the above fact-finding, it is reasonable to deem that the instant notice was not reasonable as a rejection to renew the street contract.

① The Intervenor received medical care benefits to treat the occupational injury suffered in the normal course of performing the Plaintiff Company’s delivery business, and thus was unable to perform the delivery business between the three terms of the instant secondary employment contract, and was not in the physical condition at the time of the instant notice.

(2) According to the main text of Article 23(2) of the Labor Standards Act, an employer shall not dismiss an employee during a period of suspension of work for medical treatment of an occupational injury or disease, and for the period of 30 days thereafter. According to Article 111-2 of the Industrial Accident Compensation Insurance Act, an employer shall not dismiss, or take any disadvantageous action against an employee, his/her employee’s application for insurance benefits. Considering the legislative intent of the aforementioned provision on the protection of an employee who suffers from an occupational accident, the circumstance that it is difficult to provide labor due to an occupational accident cannot be considered as a ground for rejection of renewal.

Therefore, it is reasonable to view the Intervenor as a reasonable ground for refusing to renew the labor contract, in itself, that the Intervenor did not perform delivery duties for the period of the instant third labor contract due to the circumstances during which the Intervenor was under medical care due to occupational accidents, or that the Plaintiff was physically unable to perform delivery duties at the time of the instant notification.

③ Even if the Intervenor did not work for the period of the instant third labor contract, the Plaintiff Company assessed the Intervenor for each quarter, and thus, cannot be deemed as not having been able to evaluate the renewal of the labor contract. Furthermore, considering the ratio of the renewal of the Plaintiff Company’s contract, the result of quarterly deliberation by the Intervenor cannot be a reasonable ground for refusal of renewal.

④ Around the time of the instant notification, the contractual renewal rate was lower, but it still remains higher, and it seems to be a temporary phenomenon.

B) It is difficult to accept this part of the Plaintiff Company’s assertion.

5) Sub-decisions

The judgment of this case to the same purport is legitimate, and the plaintiff's above assertion is not acceptable.

3. Conclusion

Since the claim of this case cannot be accepted, it is dismissed and it is so decided as per Disposition.