(B)Revocation of revocation of the imposition of enforcement fines.

A Stock Company

Jeonbuk Regional Labor Relations Commission

Jeonju District Court Decision 2012Guhap727 Decided September 18, 2012

December 3, 2012

December 17, 2012

1. The plaintiff's appeal is dismissed.

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

The judgment of the first instance is revoked. On June 23, 2011, the Defendant revoked the imposition of enforcement fines of KRW 6,500,000 against the Plaintiff.

1. Quotation of the first instance judgment

The reasoning for this Court’s explanation concerning this case is as stated in the judgment of the court of first instance except for the following parts, and thus, this Court’s explanation is acceptable in accordance with Article 8(2) of the Administrative Litigation Act and the main text of Article 420 of the Civil Procedure Act.

2. The part to be mard;

○ Section 3(f)(f) of Section 3. The Defendant made a disposition imposing KRW 6,50,000 for compelling compliance on the following grounds: “The Defendant later rendered a disposition imposing KRW 6,50,000 for compelling compliance on June 23, 201 on the ground of the full non-performance of the remedy order (an amount equivalent to the wages during the period of the strike) (hereinafter “instant disposition”).

Article 33(1) of the Labor Standards Act provides that the Labor Relations Commission shall impose a non-performance penalty on an employer who fails to comply with the order for remedy by the deadline after receiving the order for remedy, and Article 79 subparag. 2 (amended by Rules of the National Labor Relations Commission Rule of July 10, 2012) of the Labor Standards Act provides that “The period during which a partner participates in the strike (from December 8, 2012 to April 14, 201) shall be the period during which the person participates in the strike (from December 8, 2010 to April 14, 2011).”

According to the evidence revealed in the above disposition, the defendant issued a remedy order in this case where "the worker B is reinstated to his/her former office within 30 days from the date of receiving the written adjudication, and the amount equivalent to the wages that could have been received if he/she had worked during the period of dismissal" on January 17, 201, and the defendant notified the plaintiff of the above remedy order to the plaintiff on January 17, 201 and reached the plaintiff around that time. Nevertheless, it is recognized that the plaintiff did not pay wages during the period of the strike until 30 days (as of March 4, 2011) set forth in the above written adjudication. Therefore, the issue of this case is whether the plaintiff had a duty to pay the amount equivalent to the wages of the above worker during the period of the strike.

In light of the above, an employer is deemed to have been unable to provide labor due to a cause attributable to the employer even though his/her labor contract relationship remains effective, and barring any special circumstance, a worker may claim wages in return which may be paid in cases where he/she provides labor during that period pursuant to Article 538(1) of the Civil Act: Provided, That even if dismissal was not in fact impossible, if an employer discontinues his/her business due to a cause attributable to the employer, the employer cannot claim wages during that period since it was not in fact impossible to provide labor due to the cause attributable to the employer. Meanwhile, labor without labor caused by an industrial action cannot be deemed as a cause attributable to the employer even if the industrial action is lawful, and barring any special circumstance, the employer has no duty to pay wages during that period for the worker who has not participated in the industrial action (see Article 44(1) of the Trade Union and Labor Relations Adjustment Act). In light of this, even if the dismissed worker participated in the industrial action or becomes dismissed during that period, it is reasonable to view that the industrial action was not directly and directly attributable to the relevant circumstances.

However, even though the above worker was dismissed from the plaintiff until he is reinstated, there is no material or evidence that the worker did not provide labor even though he did not have been dismissed from the strike during the previous period of time. (In light of the fact that the plaintiff argued that the dismissal of the above worker was not unfair, and that the case for remedy against the above worker was not restored to the original position even after the termination of the National Labor Relations Commission, it is reasonable to deem that the plaintiff did not offer an opportunity to provide labor to the above worker until he was reinstated from the original position). The meaning of the "amount equivalent to wages that the plaintiff could have received if he had provided labor for the above worker for the period of time" in the relief order in this case refers to all wages that the plaintiff could have received if the above worker had continued to provide labor for the above worker during the period of time from the date of unfair dismissal to the day before the worker was restored to the original position. Therefore, the plaintiff did not dispute the amount equivalent to the above worker's wages during the period of time for the above worker's participation (which does not violate the above order of remedy).

3. Conclusion

Therefore, the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

The senior judge of the presiding judge;

Judges Lee Jae-soo

Judges Park Sang-hoon

1) According to the records, the instant order includes the portion to be restored to B within 30 days from the date of receipt of the written adjudication, but the grounds for the instant disposition were not included in the part to be restored to their original position, and thus, the instant order is only determined as being unpaid during the period of the strike, which falls under the grounds for the instant disposition.