[1] The meaning of “unfavorable treatment” under Article 2 subparag. 3 of the Fixed-term and Part-Time Workers Protection Act and the standard for determining whether such treatment is applicable

[2] The meaning of "reasonable reasons" in the definition of discriminatory treatment under Article 2 subparagraph 3 of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers, and the standard for determining whether there exists a reasonable reason

[1] The term “unfair treatment” under Article 2 subparag. 3 of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers refers to the overall disadvantage of fixed-term workers by treating fixed-term workers differently from comparable workers in terms of wages and other working conditions. Thus, in order to determine whether a “fixed-term worker” constitutes “unfair treatment,” the criteria for determining whether a “fixed-term worker” has received unfavorable treatment in comparison with a “regular worker” who is the comparable worker.

[2] Article 2 subparag. 3 of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers defines discriminatory treatment as “an unfavorable treatment in terms of wages, other working conditions, etc. without any justifiable reason.” The phrase “reasonable reason” refers to the absence of a need to treat fixed-term workers differently, or the method, degree, etc. of such treatment is inappropriate even if the need to treat them is recognized otherwise. Furthermore, whether reasonable grounds exist in individual cases should be determined by comprehensively taking into account the contents of the unfavorable treatment in question, the form and scope of employment of workers who are considered as the grounds for the unfavorable treatment in question, the contents, scope, authority, responsibility, wage, and other working conditions, etc.

[1] Article 2 subparagraph 3 of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers / [2] Article 2 subparagraph 3 of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers

[1] Supreme Court Decision 2011Du7045 Decided October 25, 2012 (Gong2012Ha, 1938) / [2] Supreme Court Decision 2011Du7045 Decided October 25, 2012 (Gong2012Ha, 1938)

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

The Chairman of the National Labor Relations Commission

Korea Railroad Corporation (Law Firm Barun, Attorneys Seo Ho-chul et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2011Nu17518 decided December 23, 2011

All appeals are dismissed. The costs of appeal, including the part resulting from supplementary participation, are assessed against the plaintiffs.

1. The judgment of the court below

According to the reasoning of the judgment of the court below, the court below, citing the reasons of the judgment of the court of first instance, it is appropriate for the plaintiffs to select the comparable workers of this case to "worker who entered into an employment contract without fixing the period of work for the same or similar kind of work at the relevant business or workplace" (hereinafter referred to as "employee subject to non-regular work") pursuant to Article 8 (1) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (hereinafter referred to as the "fixed-term Work Period Act"), and judged that the comparable workers of this case were treated disadvantageously by the plaintiffs in comparison with them: ① 15 workers of the comparable workers selected by the plaintiffs 1 and 2 who were fixed-term workers and were converted into full-time workers (the judgment of the court of first instance [2] No. 1 or 15), since the fixed-term work period of the above plaintiffs was not recognized as work period similar to that of the above plaintiffs, it is difficult to view that the above plaintiffs were treated disadvantageously to them from the beginning.

Furthermore, the lower court determined that there exists a reasonable ground for treating the Plaintiffs of the instant comparable workers when comprehensively taking into account the following: (a) even if the Plaintiffs received unfavorable treatment compared to the instant comparable workers, the long-term continuous work allowances are intended to induce long-term work or have the characteristic of compensation for meritorious services for long-term workers, which is not consistent with the fixed-term work.

2. The judgment of this Court

A. Regarding whether the selection of comparable workers is appropriate and disadvantageously treated, the ground of appeal No. 1

(1) In light of the relevant legal principles and records regarding the appropriateness of the selection of comparable workers in the instant case, the lower court is justifiable to have determined that the Plaintiffs’ selection of comparable workers is appropriate, and there was no error by misapprehending the legal principles on the selection of comparable workers in Article 8(1) of the Fixed-term Workers Act.

(2) Next, we examine whether the Plaintiffs received unfavorable treatment.

The reasoning of the lower court can be summarized as follows: (a) the Plaintiffs compared the comparable workers who were converted from fixed-term workers to regular workers among the comparable workers in this case, and the situation in which they were converted from fixed-term workers to regular workers is the same as the situation, and thus, they did not receive “unfavorable treatment” under the Fixed-term Workers Act

However, unfavorable treatment under Article 2 subparag. 3 of the Fixed-Term Workers Act refers to all the disadvantages incurred to fixed-term workers by treating fixed-term workers differently from comparable workers in terms of wage and other working conditions (see Supreme Court Decision 2011Du7045, Oct. 25, 2012). Thus, in order to determine whether “fixed-term workers” constitute “unfavorable treatment,” it should be determined on the basis of whether the “fixed-term workers” have received unfavorable treatment compared to the “regular workers” who are comparable workers. In other words, in order to determine whether the Plaintiffs received unfavorable treatment under the Fixed-term Workers Act, the situation after the Plaintiffs’ conversion into regular workers should not be considered, and the pertinent comparable workers should not be considered as the subject of their past fixed-term work experience. However, the Plaintiffs’ “fixed-term work period” and “regular work period” of the comparable workers should be compared to the Plaintiffs’ “fixed-term workers” and the “regular work period of the comparable workers.

However, according to the records, in the case of the comparable workers in this case, compared to the continuous service period required for the calculation of the long-term continuous service allowance, the Plaintiffs’ “fixed-term service period” is not included in the continuous service period required for the calculation of the long-term continuous service allowance. Therefore, it is reasonable to deem that the Plaintiffs received unfavorable treatment compared to the comparable workers in this case.

B. As to whether there is a reasonable ground for appeal No. 2

Article 2 Subparag. 3 of the Fixed-term Workers Act defines discriminatory treatment as “unfavorable treatment in terms of wages and other working conditions, etc. without any justifiable reason.” The phrase “reasonable reason” refers to the absence of a need to otherwise treat fixed-term workers, or the method, degree, etc. of such treatment is inappropriate even if the need to treat them is recognized. Furthermore, whether reasonable grounds exist in individual cases should be determined by comprehensively taking into account the contents of the unfavorable treatment in question, the forms of employment for workers as the grounds for the unfavorable treatment in question, the contents, scope, authority, and responsibility of duties, wage, and other working conditions, etc. (see the above Supreme Court Decision 200Da3288

In full view of the following circumstances indicated in the above legal principles and records, namely, the instant long-term continuous service allowance is not paid for the long-term continuous service, but for the purpose of encouraging the long-term continuous service, and it cannot be denied that there is a difference between the Plaintiffs’ fixed-term employment type and the instant regular employment type of comparable workers in terms of employment purpose, scope of work or authority, etc., there is a reasonable reason that the Intervenor did not include the Plaintiffs’ fixed-term continuous service period in the continuous service period for calculating the long-term continuous service allowance.

Therefore, the lower court’s conclusion rejecting the Plaintiffs’ assertion of discriminatory treatment is justifiable, and it did not err by misapprehending the legal doctrine on “reasonable grounds” under Article 2 subparag. 3 of the Fixed-term Act or “discriminatory treatment” under Article 8(1) of the Fixed-term Treatment Act, thereby affecting the conclusion of the judgment.

3. Conclusion

Therefore, although the judgment of the court below is erroneous in its determination as to the "unfair treatment", this does not affect the conclusion of the judgment, and all appeals are dismissed, and the costs of appeal are assessed against the losing party including the portion resulting from the participation in the subsidy. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)