[1] In a case where the right to expect the renewal of an employment contract is recognized for a certain period of time, the validity of the employer's refusal to renew the employment contract against the right to expect (negative) and whether the employment contract after the expiration of the period is the same as the renewal of the employment contract (affirmative)

[2] Whether the legitimate right to expect renewal of fixed-term workers already formed before the enforcement of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers is excluded or restricted (negative), and whether the formation of legitimate right to expect renewal of fixed-term workers is restricted by Article 4 of the same Act (negative)

[3] In a case where the right to expect a fixed-term worker to be converted to an employee without a fixed period of time is acknowledged, the validity of the employer’s notice of termination of the employment contract without reasonable grounds (negative), and whether the subsequent employment relationship is the same as the conversion to an employee with no fixed period of time (affirmative)

[1] In principle, the status relationship as an employee shall be terminated as a matter of course upon the expiration of the period in the case of an employee who has entered into an employment contract for a fixed period. However, if there is a provision that the employment contract shall be renewed upon the fulfillment of certain requirements despite the expiration of the period in the employment contract, employment rules, and collective agreement, or if there is no such provision, considering various circumstances surrounding the employment relationship even if there is no such provision, the trust between the parties to the employment contract is formed that the contract will be renewed if certain requirements are met, and thus the right to expect the renewal of the employment contract can be renewed accordingly, the employer's refusal of the renewal of the employment contract unfairly in violation of such provision is invalid as it is unfair.

[2] In light of the legislative purport of Article 4 of the Fixed-term Workers Act is basically to guarantee workers’ status by preventing abuse of fixed-term employment contracts, even if an employer may employ fixed-term workers within a period of two years under the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (hereinafter “fixed-term Act”), and even if a fixed-term worker’s total period of employment exceeds two years, the legislative purport of Article 4 of the Fixed-Term Workers Act is to ensure workers’ status by preventing abuse of fixed-term employment contracts, it cannot be deemed that the legitimate right to expect renewal of fixed-term workers already formed before the enforcement of the Fixed-Term Workers Act is excluded or restricted. Furthermore, there is no restriction

[3] Examining the legal principles as to the right to expectation of fixed-term workers in addition to the contents and legislative intent of Articles 5, 8(1) and 9(1) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers, in light of the following: (a) the content of the labor contract, employment rules, collective agreement, etc. provides that if certain requirements are met through personnel evaluation, etc. at the time when the contract period of a fixed-term worker expires; or (b) the circumstances surrounding labor relations, such as the motive and background leading up to the execution of the labor contract, the standards for conversion into an employee without a fixed period of time, etc., and the establishment of the requirements and procedures related thereto, and the actual status thereof, and the contents of the work performed by the worker, are comprehensively considered; and (c) if there is a trust relationship formed between the parties to the labor contract that a fixed-term worker may be converted to an employee without a fixed period of time, the employer in violation of this provision, and even if the termination of the labor contract is notified, it is invalid and invalid.

[1] Article 23 of the Labor Standards Act / [2] Article 4 of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers / [3] Articles 5, 8(1), and 9(1) of the Fixed-Term and Part-Time Workers Act

[1] Supreme Court Decision 2007Du1729 Decided April 14, 201 (Gong2011Sang, 925) / [2] Supreme Court Decision 2011Du12528 Decided February 13, 2014 (Gong2014Sang, 590)

Foundation (LLC, Kim & Lee LLC, Attorneys Lee Jong-soo et al., Counsel for the plaintiff-appellant)

The Chairman of the National Labor Relations Commission

Intervenor joining the Defendant (Law Firm Shin & Yang, Attorneys Yang Sung-hoon, Counsel for the defendant-appellant)

Seoul High Court Decision 2013Nu53679 decided November 6, 2014

The appeal is dismissed. The costs of appeal are assessed against the Plaintiff, including the part resulting from supplementary participation.

1. Case history

A. The Plaintiff is a foundation that operates the projects to support the social jobs of the unemployed, and the Intervenor joining the Intervenor (hereinafter “ Intervenor”) served in the Plaintiff’s legal entity as the head of the social enterprise establishment support team. On September 24, 2012, the Plaintiff notified the Intervenor of the termination of the labor contract as of October 25 of the same year. On November 21, 2012, the Intervenor asserted that the instant notification to the Seoul Regional Labor Relations Commission constituted unfair dismissal, and filed an application for unfair dismissal. The Seoul Regional Labor Relations Commission rejected the Intervenor’s application on January 24, 2013, deeming that the instant notification was an unfair dismissal. However, the National Labor Relations Commission accepted the Intervenor’s legitimate expectation right to renew the labor contract on May 22, 2013, deeming that the Plaintiff was unfairly terminated the labor relationship.

B. The lower court determined as follows.

(1) In full view of the evidence adopted by the lower court, the Plaintiff and the Intervenor entered into a labor contract on October 26, 2010 with the term of contract from October 26, 2010 to October 25, 2012, stating that the contract may be renewed one month before the expiration of the contract. The Intervenor was in the position of the donator management team at the time of employment, and was transferred to the social corporate establishment support team on March 14, 201. The Plaintiff, on September 19, 2012, was a fixed-term worker of 20 years before the expiration of the contract period, and the Plaintiff was in the position of the 1st general manager at the 1st general manager at the 20th general manager at the 1st general manager at the 20th general manager at the time of employment, and the 2nd general manager at the 20th general manager at the 1st general manager at the 20th general manager at the 1st general manager at the 20th general manager.

(2) Then, the lower court determined that the Plaintiff’s right to expect that a part-time worker may be converted to a full-time worker through a legitimate personnel evaluation, in full view of the following: (a) the circumstances revealed by the aforementioned factual basis and the evidence adopted thereunder; (b) the Plaintiff’s fixed-term worker in general service was employed upon the request of the personnel committee that the period of verification prior to the employment of a full-time worker is needed; and (c) the Plaintiff’s fixed-term worker engaged in the same work as a full-time worker; and (d) the Plaintiff’s part-time worker in general service, including the Intervenor, should be employed as a full-time worker, barring any special circumstances. (c) In fact, the part-time worker in general service was converted to a full-time worker; and (d) the Plaintiff also provided the opportunity to convert to a full-time worker in general service even after the expiration of the period after the expiration of the contract; and

(3) In addition, in light of the following circumstances, the lower court determined that the instant notice cannot be deemed to have been given to the Intervenor through reasonable and fair evaluation, and thus, it did not have any justifiable reason and thus, was lawful by the Central Labor Relations Commission’s review decision.

(A) The Plaintiff notified the Intervenor of the instant case without deliberation by the personnel committee. However, in the case of Nonparty 1, who was a person subject to the personnel evaluation of the instant case, the Plaintiff, along with the Intervenor, was converted to regular employees on November 1, 2012 following the personnel committee. At the time of the full-time conversion, Nonparty 1 stated that all of the head of the planning team and the general team leader of the planning strategy, to which Nonparty 1 belonged, did not conduct the personnel evaluation on Nonparty 1, and that it is doubtful whether the instant personnel evaluation procedure was conducted fairly.

(B) Even based on the instant personnel evaluation method notified to the intervenors, there is no specific provision on the basis of the criteria subject to regular raise in salary. In fact, in the instant personnel evaluation, the head of the general team and the head of the bureau who is the first evaluation authority and the second evaluation authority, who are the second evaluation authority, have assessed contrary to the Intervenor, and the said evaluation was conducted under any of the criteria.

(C) In light of the fact that Nonparty 3 granted class D to the Intervenor’s supplementary evaluation of the Intervenor’s attitude, even based on the grounds indicated in the above, it appears that the instant personnel evaluation should have been conducted according to the evaluation criteria, not class D, and that it would have been conducted according to the evaluation criteria, there is doubt as to whether the instant personnel evaluation was conducted according to the objective criteria.

(D) In the capacity assessment in 201, the Intervenor fell under Grade 6 among the 10 members of the entire team and the first evaluation in the first evaluation in the first half of the year 2012 (the second evaluation was conducted by Nonparty 3 at the same time as the personnel evaluation in the instant case, but the second evaluation was conducted by Nonparty 3), and there are also data to recognize that the Intervenor faithfully performed the duties assigned to him.

C. The Plaintiff’s grounds of appeal are as follows.

(1) Inasmuch as a fixed-term worker has the right to renew an employment contract, the pertinent fixed-term worker does not have the right to be recognized as a full-time worker. The right to expect the transition of a full-time worker should be recognized in accordance with more strict requirements than the right to renew the employment contract. An intervenor cannot be deemed to have the right to expect the renewal of the employment contract

(2) The instant notice does not unreasonably infringe the Intervenor’s right of renewal.

2. Judgment of the Supreme Court

A. In principle, the status of an employee who entered into an employment contract for a fixed period is naturally terminated upon the expiration of the fixed period. However, in a case where there is a trust relationship between the parties to the employment contract and the parties to the employment contract that the employment contract will be renewed upon the fulfillment of certain requirements, regardless of the expiration of the period, or where there is no such provision, in full view of various circumstances surrounding the employment relationship, the employer’s refusal of the renewal of the employment contract in violation of the trust relationship that the contract will be renewed upon the fulfillment of certain requirements is not effective as it is unfair, and in this case, the employment relationship after the expiration of the period shall be deemed the same as the renewed employment contract (see, e.g., Supreme Court Decision 2007Du1729, Apr. 14, 201).

Meanwhile, 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 use a fixed-term worker for a period not exceeding two years (in cases of repeated renewal, etc. of fixed-term employment contracts, to the extent that the total period of continuous employment does not exceed two years)” under the proviso to paragraph (1) provides that “If an employer employs a fixed-term worker for more than two years despite the absence or extinguishment of 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.”

As above, an employer may employ a fixed-term worker within two years by the enforcement of the Fixed-term Workers Act, and even if a fixed-term worker is deemed an employee with no fixed-term employment contract when the total period of employment exceeds two years, considering the legislative purport of the above provision is basically to guarantee the status of the worker by preventing abuse of the fixed-term employment contract, it cannot be deemed that the legitimate expectation right for the renewal of a fixed-term worker already formed before the enforcement of the fixed-term employment contract is excluded or restricted (see Supreme Court Decision 2011Du12528, Feb. 13, 2014). Furthermore, the establishment of legitimate expectation right for the renewal of a fixed-term worker is not restricted by the above provision.

B. Article 5 of the Fixed-Term Workers Act provides, “If an employer intends to conclude an employment contract without a fixed period, he/she shall endeavor to preferentially employ fixed-term workers engaged in the same or similar kind of work at the business or workplace concerned, and Article 8(1) provides, “An employer shall not give discriminatory treatment to workers who have entered into an employment contract without a fixed period of time engaged in the same or similar work at the business or workplace concerned on the ground that they are fixed-term workers, compared to those who have entered into an employment contract on the ground that they are fixed-term workers.” Article 9(1) provides, “If a fixed-term worker or part-time worker has received discriminatory treatment, he/she may apply for the correction thereof

In addition to the legal principles on the right to expectation of fixed-term workers as seen earlier, the content and legislative intent of the above provision provides that a fixed-term worker shall be converted to an employee without a fixed period of time when a certain requirement is met through personnel evaluation, etc. at the time of the expiration of the contract term of a fixed-term worker. In full view of the various circumstances surrounding the employment relationship, including the motive and background leading up to the employment contract, the standards for conversion into an employee with no fixed period of time, etc., the establishment of the requirements and procedures related to the employment contract, the actual status thereof, and the contents of the work performed by the employee, etc., if the parties to the employment contract have formed a trust relationship between the parties to the employment contract that a fixed-term worker shall be converted to an employee without a fixed period of time, and if the employer refuses to convert the worker into an employee without a fixed period of time without reasonable grounds and notifies the termination of the employment contract, the subsequent employment relationship shall be deemed the same as the conversion into an employee without a fixed period of time.

C. Examining the judgment of the court below in light of the above legal principles, the court below recognized the plaintiff's right to expect that the plaintiff may be converted to regular workers through a legitimate personnel evaluation, and judged that the notification of this case is not effective since the plaintiff cannot be deemed to have made the notification of this case through a reasonable and fair evaluation without justifiable grounds, is partially inappropriate, but its conclusion is acceptable. Contrary to the allegations in the grounds of appeal, the court below did not err by misapprehending the legal principles on the right to demand renewal of fixed-term workers or the right to expect the transition to regular

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party, including the part arising from the participation in the appeal. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Poe-dae (Presiding Justice)