In a case where: (a) the Regional Labor Relations Commission issued a remedy order on the ground that Company A was unfairly dismissed from his/her employees Eul; (b) imposed enforcement fines on the ground of non-performance of the remedy order; and (c) thereafter, confirmed that the employment relationship was terminated in the review procedure of the National Labor Relations Commission; and (d) settlement was established, the case holding that the disposition imposing enforcement fines, etc. was lawful.

The case holding that the imposition of enforcement fines, etc. is lawful on the ground that the local Labor Relations Commission issued a remedy order to pay money and valuables instead of reinstatement to Gap company on the ground that Gap company unfairly dismissed Eul's employees, etc., but imposed enforcement fines on Gap company on the ground that the non-compliance with the remedy order was terminated in the review procedure of the National Labor Relations Commission, and that the settlement was established after confirming that the employment relationship was terminated in the review procedure of the National Labor Relations Commission, and that the settlement payment was made, the settlement order was not the same as the cancellation of the remedy order, and that Gap company did not comply with the remedy order

Articles 32 and 33 of the Labor Standards Act, Article 15(1) of the Enforcement Decree of the Labor Standards Act

Han-Energy Co., Ltd. (Attorney Full Use, Counsel for defendant-appellee)

Gangwon Regional Labor Relations Commission

October 24, 2014

1. The plaintiff's claim is dismissed.

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

The imposition of enforcement fines by the Defendant against the Plaintiff on July 14, 2014 and the imposition of enforcement fines by the Defendant on August 5, 2014 shall be revoked.

1. Details of the disposition;

A. The Plaintiff is a company that employs 30 workers and operates a rest area and a gas station business. Nonparty 1 and Nonparty 2, an employee of the Plaintiff, worked for the Plaintiff at the “○○○ Stop operated by the Plaintiff” around the summer in 2013, who was working as a street cleaners, filed an application for unfair dismissal with the Defendant on February 12, 2014, stating that “the Plaintiff was subject to unfair dismissal from the Plaintiff on January 16, 2014.”

B. On April 10, 2014, the Defendant issued a remedy order against the Plaintiff stating that “The Plaintiff did not notify Nonparty 1 and 2 of the reason and time of dismissal in writing, and the dismissal is unfair, and the Defendant paid KRW 1,643,470 to each employee as monetary compensation in lieu of the reinstatement order on the ground that the dismissal is unjust (hereinafter “instant remedy order”).

C. The Defendant notified the Plaintiff of the payment of monetary compensation under the instant order by June 14, 2014, but, on June 24, 2014, the Plaintiff failed to comply with the order, imposed a non-performance penalty on the Plaintiff pursuant to Article 33 of the Labor Standards Act on the ground of the Plaintiff’s non-performance of the order for remedy. Accordingly, at the Adjudication Committee held on July 7, 2014, the Defendant decided to impose a non-performance penalty amounting to KRW 10,00,000 as a non-performance penalty on the Plaintiff. According to the said decision, the Defendant issued a disposition imposing a non-performance penalty on the Plaintiff on July 14, 2014 (hereinafter “instant disposition imposing a non-performance penalty”) stating that “The Defendant shall pay KRW 10,00,000,000 to the Plaintiff by July 29, 2014” (hereinafter “instant disposition imposing a non-performance penalty”) and on August 5, 2014”).

D. Meanwhile, the Plaintiff dissatisfied with the instant remedy order and filed a petition for reexamination with the National Labor Relations Commission, which was concluded on July 18, 2014 with the following content (hereinafter “reconciliation in the instant case”).

1. We affirm that the employment relationship with the Plaintiff was terminated on July 18, 2014 by Nonparty 1 and 2.

2. The Plaintiff shall pay KRW 900,000 each of the dispute mediation amount to Nonparty 1 and 2 by depositing it in the workers’ account until August 15, 2014.

[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 5, 7, 11, Eul evidence Nos. 1 through 8, the purport of the whole pleadings

2. Whether the disposition is lawful;

A. The plaintiff's assertion

In the review procedure of the National Labor Relations Commission, Nonparty 1 and Nonparty 2 concluded the settlement of this case with the Plaintiff as of July 18, 2014, and thus, the Plaintiff cannot be deemed to have made an unfair dismissal against the Plaintiff. Therefore, the instant remedy order shall be deemed to have been revoked. In a case where the remedy order was revoked in the retrial procedure, even if the imposition or collection of enforcement fines for non-performance of the remedy order was prohibited as prescribed in Article 15 of the Enforcement Decree of the Labor Standards Act, the Defendant issued the instant disposition of imposition and demand against the Plaintiff, and thus, it is unlawful.

B. Relevant statutes

The statutes related to the instant case shall be as shown in the attached Form.

C. Determination

Article 32 of the Labor Standards Act provides that “The remedy order, dismissal ruling, or retrial ruling by the Labor Relations Commission shall not be effective in accordance with Article 31.” Article 33(1) provides that “The Labor Relations Commission shall, after receiving the remedy order (including the review ruling that is subject to the remedy order; hereinafter the same shall apply) and then failing to comply with the remedy order by the due date, shall impose a non-performance penalty not exceeding twenty million won on the employer.” Such enforcement penalty is to ensure the effectiveness of the remedy order issued by the Special Labor Relations Commission in resolving labor dispute, and promptly remedy the worker who is unfair.

However, a non-performance penalty is a compulsory measure to impose a certain amount of money on an obligor when the obligation under the administrative law is not fulfilled, thereby psychological pressure is imposed to ensure the performance of the obligation under the public law. In general, it is a means of notifying in advance that a certain amount will be imposed on the basis of the frequency of breach of duty or the number of days of breach of duty. However, it is reasonable to view that a non-performance penalty under the Labor Standards Act requires an administrative agency that issued a remedy order to impose a certain amount of money not exceeding KRW 20,000 on an employer who fails to comply with the remedy order by the deadline for the implementation of the remedy order, as well as a sanction on an employer who fails to comply with the remedy order by the deadline for implementation.

Meanwhile, Article 15(1) of the Enforcement Decree of the Labor Standards Act provides that “If a remedy order is revoked by the Labor Relations Commission in accordance with the review decision by the Central Labor Relations Commission or the final judgment by the court, the Labor Relations Commission shall immediately suspend the imposition and collection of charges for compelling compliance and return the charges for compelling compliance already collected, ex officio or upon the employer’s application,” thereby suspending the imposition and collection of charges for compelling compliance

However, under the premise that the order for remedy is unlawful, the revocation of the order for remedy is premised on a new trial by the National Labor Relations Commission or a public judgment extinguishing its validity in accordance with the final judgment of the court. On the other hand, the compromise is not an issue as to whether the order for remedy is unlawful or unreasonable, but it is possible to freely coordinate the rights and obligations between the parties to the labor contract (in this case, it cannot be determined whether the order for remedy in this case is unlawful or not). Furthermore, according to Article 32 of the Labor Standards Act, the order for remedy in this case is not suspended by a request for review or an administrative litigation against the National Labor Relations Commission. As such, in principle, the employer should promptly implement the order for remedy, and even if the order for remedy is made in the subsequent new trial procedure, it cannot be deemed that the failure of the order for remedy has already been extinguished by the due date. Accordingly, it cannot be deemed that the order for remedy in this case has already been revoked, and as long as the order has not been implemented by the execution deadline set by the Plaintiff, the requirements for the imposition of enforcement penalty in this case and disposition of this case are legitimate.

3. Conclusion

The plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment] Relevant Statutes: omitted

Judges Kang Sung (Presiding Judge) (Presiding Judge)