Whether the proviso of Article 4(1)6 of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers can be applied to a fixed-term worker who engages in a job providing sports guidance at schools, workplaces, local communities, sports organizations, etc. for more than two years (affirmative)

According to the main text of Article 4(1) and Article 4(2) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (hereinafter “ Fixed-Term Act”), an employer may employ a fixed-term worker for a period not exceeding two years, and where a fixed-term worker is employed for more than two years in violation of this Act, the fixed-term worker shall, in principle, be deemed an employee who

However, the proviso of Article 4(1) of the Fixed-term Act provides for the exception to allowing a fixed-term worker to be employed for more than two years in any of the following cases, and provides for cases falling under subparagraphs 1 through 5. Furthermore, Article 4(1)6 of the Fixed-term Act provides for “any reasonable ground corresponding to subparagraphs 1 through 5, as prescribed by the Presidential Decree.” Article 3(3)7 of the Enforcement Decree of the Fixed-term Act provides for one of the cases “as prescribed by the Presidential Decree.” Article 4(1)6 of the Act provides that “where a person is engaged in the duties of sports leaders under subparagraph 6 of Article 2 of the National Sports Promotion Act” (amended by Act No. 11309, Feb. 17, 2012; hereinafter the same shall apply) is an exception to sports instructors under Article 2 subparag. 6 of the former National Sports Promotion Act, which provides for the purpose of Article 3(1)6 of the Enforcement Decree of the Act, including the provision of the Act’s reasonable treatment of sports instructors.

In examining the structure, details, etc. of the relevant statutes of the fixed-term legislation and the former National Sports Promotion Act, where the relevant employee is engaged in the business of guiding sports at schools, workplaces, local communities, or sports organizations, it is reasonable to interpret that the proviso of Article 4(1)6 of the Enforcement Decree of the Fixed-term Act can be applied by falling under Article 3(3)7 of the same Act.

Article 4(1) and (2) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers; Article 3(3)7 of the Enforcement Decree of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers; Article 2 subparag. 6 of the former National Sports Promotion Act (Amended by Act No. 11309, Feb. 17, 2012)

Plaintiff 1 and one other (Law Firm Low-Stex, Attorneys Go Young-young et al., Counsel for the plaintiff-appellant)

Jeonnam-do (Attorney Lee Jae-soo et al., Counsel for the defendant-appellant)

Gwangju High Court Decision 2015Nu5787 decided November 12, 2015

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. According to the main text of Article 4(1) and Article 4(2) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (hereinafter “ Fixed-Term Workers Act”), an employer may employ part-time workers for a period not exceeding two years, and in cases where a fixed-term worker is employed for more than two years, in principle, the fixed-term worker shall be deemed an employee who has concluded an employment contract

However, the proviso of Article 4(1) of the Fixed-term Act provides for the exception to allowing a fixed-term worker to be employed for more than two years in any of the following cases, and provides for cases falling under subparagraphs 1 through 5. Furthermore, Article 4(1)6 of the Fixed-term Act provides for “any reasonable ground corresponding to subparagraphs 1 through 5, as prescribed by the Presidential Decree.” Article 3(3)7 of the Enforcement Decree of the Fixed-term Act provides for one of the cases “as prescribed by the Presidential Decree.” Article 4(1)6 of the Act provides that “where a person is engaged in the duties of sports leaders under subparagraph 6 of Article 2 of the National Sports Promotion Act” (amended by Act No. 11309, Feb. 17, 2012; hereinafter the same shall apply) is an exception to sports instructors under Article 2 subparag. 6 of the former National Sports Promotion Act, which provides for the purpose of Article 3(1)6 of the Enforcement Decree of the Act, including the provision of the Act’s reasonable treatment of sports instructors.

In examining the structure, details, etc. of the relevant statutes of the fixed-term legislation and the former National Sports Promotion Act, where the relevant employee is engaged in the business of guiding sports at schools, workplaces, local communities, or sports organizations, it is reasonable to interpret that the proviso of Article 4(1)6 of the Enforcement Decree of the Fixed-term Act can be applied by falling under Article 3(3)7 of the same Act.

2. The lower court determined to the effect that (1) the Plaintiffs constitute “cases where the Plaintiffs are engaged in the sports instructor’s duties” under the proviso of Article 4(1)6 of the Act and Article 3(3)7 of the Enforcement Decree of the same Act on the grounds of the following circumstances: (2) in this case, reasonable grounds for using fixed-term workers exceeding two years can be recognized; and (3) even in this case, the lower court determined to the effect that the Plaintiffs do not go against the principle of equality, etc.

3. Examining the reasoning of the lower judgment in light of the aforementioned legal principles and the records, including the duly admitted evidence, the lower court’s reasoning is partially inappropriate, but its conclusion is acceptable. In so doing, it did not err by misapprehending the legal principles on interpretation and application of Article 2 subparag. 6, Article 11(2) and (3) of the former National Sports Promotion Act, Article 4(1) and (2) of the Fixed-term Act, Article 12(7) of the School Sports Promotion Act, and the principle of equality of the Constitution, or omitting judgment, or by violating the principle of pleading or the rules of evidence, which affected the conclusion of the judgment.

4. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok (Presiding Justice)