2013Guhap19097 Revocation of Disposition of Disposition of Disposition of Site Wage for Extension of Employment of Elderly People

A Stock Company

The Head of Seoul Regional Employment and Labor Office Seoul Southern Site

November 21, 2013

January 3, 2014

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

On August 27, 2012, the Defendant revoked the disposition of site wage for extension of employment of the elderly (the fourth and the first installment of April 2011) that the Plaintiff provided to the Plaintiff on August 27, 2012.

1. Details of the disposition;

A. The Plaintiff is a cost-based and cleaning service company that employs and manages workers after being awarded a contract for the expenses and cleaning services, and employs 200 full-time workers.

B. On May 2, 2012, the Plaintiff filed an application for subsidies for extension of employment of the elderly (490,000 won in the quarter 4, quarter 1, 945,160 in the year 201, 201) with the Defendant on the ground that he/she was employed by the Plaintiff for at least 18 months and he/she re-employed workers B, C, D, and E who reached the age of 60,00, pursuant to Article 23 of the Employment Insurance Act and Article 25 of the Enforcement Decree of the Multi-Family Insurance Act.

A person shall be appointed.

C. On August 27, 2012, the Defendant: (a) confirmed on August 27, 2012, that the Plaintiff retired from employment under the circumstances of B, J, K, E, and L (hereinafter collectively referred to as “workers subject to employment adjustment”) among the employees under his/her control for the three months prior to re-employment of the employees subject to the above subsidies and six months thereafter (hereinafter referred to as “subject period”); and (b) accordingly, rendered a disposition of site pay on the ground that it does not meet the requirements for support (hereinafter referred to as “instant disposition”).

D. The subject workers were re-employed by the Plaintiff with the initial two-year period, and the original contractor who concluded the service contract with the Plaintiff notified the termination of the contract, the Plaintiff re-established the contract with the subject workers in accordance with the contract termination date, thereby having them retire upon the termination of each contract as follows. The original term of the employment contract and the revised term of the employment contract for the subject workers are as follows.

A person shall be appointed.

[Reasons for Recognition] Unsatisfy, Gap evidence 1 (including paper numbers; hereinafter the same shall apply), Eul evidence 2, Eul evidence 4, the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

The plaintiff does not retire from his/her office against his/her will, but did so by agreement.

As the contract is terminated due to the expiration of the contract, there is no fact of employment adjustment by reducing the worker during the period of reduction of the contract. Upon the termination of the contract with the original contractor, the retirement of the worker is a business practice and the relevant worker fully consented thereto. Therefore, the Plaintiff’s disposition of this case conducted on the premise that it was opposed to the fact, even though there was no fact that the worker in question was “retirement through employment adjustment” as prescribed by Article 25(1)3 of the Enforcement Decree of the Employment Insurance Act during the pertinent period.

B. Relevant statutes

Article 23 of the Employment Insurance Act on Terms and Conditions (Support for Employment of Aged, etc.) The Minister of Employment and Labor may, as prescribed by Presidential Decree, provide necessary support to employers who newly employ the aged, etc. or take measures necessary for their employment stability in order to promote the employment of those who have particular difficulty in finding employment under the ordinary conditions of the labor market, such as the aged (hereinafter referred to as "seniors, etc."), or those who have

Article 25 of the former Enforcement Decree of the Employment Insurance Act (Amended by Presidential Decree No. 2433, Jan. 25, 2013; Presidential Decree No. 2433)

(1) Pursuant to Article 23 of the Act, the Minister of Employment and Labor shall grant subsidies for extension of employment of elderly people to employers of business who meet any of the following requirements:

3. The business owner who sets the retirement age at 57 shall not have a person who has been employed by the business owner of a place of work who has set the retirement age at 57 continuously worked for at least 18 months, or shall employ (hereafter referred to as "re-employment" in this Article and Article 28) such person within three months after he/she has retired at the retirement age, and shall not have any employee retired from employment by an adjustment in employment for three months before such re-employment and six months after such re-employment: Provided, That the subsidies for extension of employment of seniors shall not be granted where the business

C. Determination

The fact that the Plaintiff retired from employment by shortening the contract period by entering into a revised employment contract with the relevant worker during the period in which the Plaintiff was notified of the termination of the contract from the original contractor, and then retiring from employment. According to each of the evidence and evidence Nos. 3 (the details of confirmation of the fact, such as telephone, etc.) as seen earlier, the fact that a revised employment contract was concluded upon the Plaintiff’s active demand, etc. is acknowledged when there were no personal circumstances that the relevant worker would wish to do so first.

Through the evidence No. 3, the Plaintiff submitted a written confirmation confirming that the conclusion of an employment contract with the relevant workers would result from mutual agreement, not according to the Plaintiff’s unilateral demand or instruction. However, each of the above written confirmation was prepared around the end of July 2013 after the instant lawsuit was filed with a considerable time after the retirement, and the content also does not contain any reasonable and objective explanation as to why the Gap’s own previous statement was reversed, contrary to the telephone survey of No. 3, which was made around July 2012 after the retirement. More than anything else, it is difficult to believe that there was a considerable economic difference between the Plaintiff and the relevant workers who provided employment opportunities to the relevant workers, and there is no other evidence to establish the above fact-finding (the Plaintiff’s employees are emphasizing that they concluded an employment contract by their voluntary consent, and thus, they do not have any severance from employment due to employment adjustment due to the conclusion of the revised employment contract. This is also because, as seen earlier, the Plaintiff’s refusal to conclude the employment contract by reason of mutual agreement or intent of the relevant workers.

Therefore, it is reasonable to view that the subject worker has retired from employment through employment adjustment according to his/her own circumstances during the subject period, and the disposition of this case premised on this is legitimate.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

Judges of the presiding judge, leapability

Judges Yoon Young-man

Judge Lee Jin-hun