208Guhap19598 Revocation of Disposition of Imposing a non-performance penalty

000 Stock Company

Seoul Regional Labor Relations Commission

October 31, 2008

December 19, 2008

1. The Defendant’s disposition of imposition of KRW 5 million and KRW 2.5 million against the Plaintiff on March 20, 2008 is revoked.

2. The costs of lawsuit are assessed against the defendant.

The order is as set forth in the text.

1. Details of the disposition;

A. The plaintiff is a corporation engaged in taxi transport business by employing 130 full-time workers in X-gu Seoul XXdong - The plaintiff entered into an employment contract with the plaintiff company employees A and B (hereinafter referred to as the "workers of this case") in accordance with the total-time management system for taxi transport income, but did not pay part of the transport income to the plaintiff company. The plaintiff was subject to the suspension of service on September 4, 2007 for A, the suspension of service on board on September 30, 2007, the dismissal of the plaintiff company on September 30, 207, and the disposition of suspension of service on October 27, 2007 for B.

B. On October 25, 2007, A applied for remedy against unfair dismissal to the Defendant on the 31st of the same month, and the Defendant applied for remedy against unfair dismissal in 2007, the case for remedy against unfair dismissal in 2007, and the case for remedy against unfair dismissal in 2007, Section 1650, the Plaintiff did not comply with the disciplinary procedure stipulated in the rules of employment and was subject to the above disciplinary action against suspension and dismissal. At the same time, on December 18, 2007, A recognized that both the work site and the dismissal of the instant worker are unfair disciplinary action and dismissal. At the same time, B issued a remedy order that, within 30 days from the date of receipt of the written decision of dismissal against the Plaintiff, the instant worker should be reinstated to his original position, and that, if the instant worker had worked normally during the period of unfair dismissal and dismissal, the amount of wages that could have been paid should be paid (hereinafter referred to as each of the instant remedy order).

C. Although each of the instant relief orders was served on January 9, 2008 and January 10, 2008 on each of the Plaintiff, the Plaintiff did not pay the amount equivalent to the wages stipulated in each of the instant relief orders to the instant workers until February 11, 2008, which was the due date stipulated in each of the instant relief orders, and the Defendant issued a disposition of imposition of KRW 5 million against the Plaintiff on March 20, 208, on the ground that the Plaintiff failed to comply with each of the instant relief orders.

D. Meanwhile, on January 18, 2008, the Plaintiff requested a new review on each of the instant remedy orders to the National Labor Relations Commission, and the National Labor Relations Commission, on the ground that the Plaintiff was dismissed, on April 21, 2008, on the grounds that there was no fact that the Plaintiff was dismissed B, the part of the instant remedy orders regarding the dismissal of B was revoked, and the Plaintiff’s request for remedy was dismissed, but the Plaintiff made a new review decision dismissing all of the remainder of the Plaintiff’s request for retrial. On July 22, 2008, the Defendant decided to reduce the enforcement fine for remedy between the Plaintiff and B from KRW 5 million to KRW 2.5 million.

In the absence of dispute, Gap evidence Nos. 1, 2, 3, and 13, Eul evidence Nos. 1, 2, and 5 through 9 (including each number for which there are more than one lot number), and the purport of the whole pleadings.

2. Whether the disposition is lawful;

A. The plaintiff's assertion

1) Even though the Plaintiff notified the instant workers after each of the instant relief orders to work for the Plaintiff, the instant workers did not comply with the order. Therefore, the Plaintiff did not perform its duty of reinstatement in accordance with each of the instant relief orders.

2) In addition, the Plaintiff’s failure to pay wages to the instant workers due to the Plaintiff’s failure to work normally, and thus, the Plaintiff cannot pay “the amount equivalent to wages that could have been received if the Plaintiff had worked normally during the period of unfair disciplinary action and dismissal” under each of the instant remedy orders. The Plaintiff did not perform its duty to pay wages equivalent to those of the instant remedy orders.

3) Therefore, each of the instant dispositions is unlawful.

(b) Relevant statutes;

As shown in the attached Form.

C. Determination

1) As to whether the duty to return to the original position is fulfilled

As seen earlier, the Defendant imposed each of the instant dispositions on the grounds that the Plaintiff did not pay the amount corresponding to the wages by the deadline for implementation stipulated in each of the instant remedy orders, and did not impose each of the instant dispositions on the grounds that the Plaintiff did not dismiss the instant employees from office.

Therefore, the Plaintiff’s assertion on this part is without merit to further examine.

2) As to the performance of the obligation to pay an amount equivalent to wages

Article 33(1) of the Labor Standards Act provides that an employer shall impose a non-performance penalty if the employer fails to comply with the order by the due date after receiving the order for remedy from the Labor Relations Commission. Such a disposition imposing a non-performance penalty is a kind of indirect compulsory performance under the Administrative Act, which requires the employer to execute the order by imposing a non-performance penalty on the worker who is the other party to the unfair labor practice who fails to comply with the order for remedy in order to rapidly and rapidly remedy the worker who is the other party to the order and to guarantee the effectiveness of the order for remedy by the Labor Relations Commission, and may impose a non-performance penalty up to twice every year within the limit of two years from the date when the first order for remedy was issued. The disposition imposing a non-performance penalty constitutes an indivative administrative act that causes the employer to pay a certain amount. As such, the order for remedy, which is the premise of the disposition imposing a non-performance penalty, should be specifically specified

As seen earlier, with respect to the performance of the obligation to pay the amount equivalent to the wages to the Plaintiff, the Defendant ordered “B” as a remedy order in the amount equivalent to the wages that could have been received if the Plaintiff worked normally during the period of disciplinary action or dismissal. However, according to Article 79 subparag. 2 of the Rules of the Labor Relations Commission, “the amount equivalent to the wages that the employer could have received if the Plaintiff worked normally during the period of unfair disciplinary action or dismissal is paid to the worker as remuneration for work, and if the employer continues to and regularly pays the amount of the wages and is deleted from the employer under the collective agreement, rules of employment, wage rules, labor contract, labor contract, or labor practice, all of which are included in the amount (see Supreme Court Decision 2006Da4829, Dec. 8, 2006). The amount of the order can not be determined differently from the amount of the order to pay the entire amount of the wages to the employer, but it can only be determined as an amount equivalent to the amount of the above order to be paid within the specific period of dismissal.”

Therefore, the payment order equivalent to the amount of wages among the relief orders of this case is specified in the specific amount.

In addition, even if the order for remedy is lawful, the amount equivalent to the above amount of the wages shall be calculated in the amount equivalent to the wages of the original high-priced workers who did not pay the amount of the wages to the original high-priced workers.

Therefore, the defendant cannot impose a non-performance penalty on the plaintiff on the ground that the plaintiff failed to comply with each of the orders for remedy in this case.

3) Sub-decisions

Therefore, the Plaintiff’s imposition of each of the instant dispositions is unlawful.

3. Conclusion

Therefore, the plaintiff's claim shall be accepted for all reasons, and it is decided as per Disposition.

Judges Kim Jae-soo

Judges Kim Jong-sung

Judges Cho Jong-hee

Relevant statutes

Labor Standards Act

Article 31 (Confirmation of Order, etc. for Remedy)

(1) An employer or worker who is dissatisfied with an order for remedy or a decision of dismissal made by a local Labor Relations Commission under the Labor Relations Commission Act may apply for reexamination to the National Labor Relations Commission within ten days from the date he/she has received a notice of the previous order or decision of dismissal.

(2) With respect to a decision made by the Central Labor Relations Commission on reexamination under paragraph (1), the employer or worker may institute an action pursuant to the Administrative Litigation Act within 15 days from the date of receipt of the written decision made by reexamination.

(3) Where no application for reexamination is filed or administrative litigation is filed within the period referred to in paragraphs (1) and (2), the previous order, decision of dismissal, or decision on reexamination shall become final and conclusive.

Article 32 (Effect of Orders for Remedy, etc.)

No order of remedy, decision of dismissal, or decision of review by the Labor Relations Commission shall be suspended in effect by filing an application for reexamination with the National Labor Relations Commission under Article 31, or by filing an administrative litigation.

Article 33 (Non-performance Penalties)

(1) A Labor Relations Commission shall impose a charge for compelling the performance of not more than 20,00 won on an employer who has received an order for remedy (including a decision on reexamination, the contents of which are the order for remedy; hereafter the same shall apply in this Article) and fails to comply with

(2) A Labor Relations Commission shall inform an employer in writing that the charge for compelling the performance will be imposed and collected 30 days prior to the imposition of the charge for compelling the performance pursuant to paragraph (1).

(3) When imposing a non-performance penalty under paragraph (1), it shall be imposed in writing specifying the amount of the non-performance penalty, reasons for imposition, payment deadline, receiving agency, method of raising an objection, raising an objection, institution for raising an objection, etc.

(4) The amount of a non-performance penalty imposed pursuant to paragraph (1) depending on the type and degree of violation, procedures for the return of a forced performance penalty imposed and collected, and other necessary matters shall be prescribed by Presidential Decree.

(5) A Labor Relations Commission may impose and collect a charge for compelling the performance under paragraph (1) two times a year, counting from the date it issued the first order for remedy until the order for remedy is fulfilled. In such cases, the charge for compelling the performance shall not be imposed and collected in excess of two years.

(6) The Labor Relations Commission shall not impose any new charge for compelling compliance if the order for remedy is complied with, but shall collect the charge for compelling compliance already imposed before the order for remedy is complied with.

(7) If a person liable to pay the charge for compelling execution fails to do so by the payment deadline, a Labor Relations Commission shall urge it to do so within a specified period, and if the person fails to pay the charge for compelling execution under paragraph (1), it may collect

(8) If the employer subject to the order for remedy fails to comply with it by the deadline for execution thereof, the worker concerned may inform the Labor Relations Commission of such fact within fifteen days after the deadline for performance expires.

Enforcement Decree of the Labor Standards Act

Article 11 (Period for Submission of Orders for Remedy)

A Labor Relations Commission pursuant to the Labor Relations Commission Act (hereinafter referred to as "Labor Relations Commission") shall, when it issues a old order for remedy to an employer pursuant to Article 30 (1) of the Act (hereinafter referred to as "order for remedy"), set the period for performance. In such cases, the period for performance shall be within 30 days from the date on which it issues an order for remedy.

Article 12 (Deadline for Payment of Non-performance Penalties, Presentation of Opinions)

(1) When a Labor Relations Commission imposes a non-performance penalty pursuant to Article 33 (1) of the Act, it shall set a deadline for payment within 15 days from the date of receipt of notice of imposition thereof

(2) Where it is impracticable for a Labor Relations Commission to pay a charge for compelling compliance within the deadline for payment pursuant to paragraph (1) due to a natural disaster, incident, or other unavoidable cause, it may set a period not exceeding 15 days from the date on which such cause or event ceases to exist.

(4) The procedure for collecting charges shall be prescribed by Ordinance of the Ministry of Labor.

Article 13 (Standards for Imposition of Non-Performance Penalties)

Criteria for imposing non-performance penalties according to the types of offenses and offenses prescribed in Article 33 (4) of the Act shall be as specified in attached Table 3.

Article 13 (Guidelines for Imposition of Non-performance Penalties)

A person shall be appointed.

* Non-performance: Specific amount of non-performance penalty shall be determined in consideration of the motive for the violation, degree of liability of the user, such as intentional and negligent acts, degree of effort to implement the order for remedy, period of non-compliance, etc. within the scope of the amount imposed according to the type of the violation.

Article 14 (Suspension of Imposition of Charges for Compelling Execution)

Where any of the following grounds exists, a Labor Relations Commission may impose a charge for compelling the performance, ex officio or at the request of the employer, after such ground ceases to exist:

1. Where the employer has made objectively efforts to implement the order for remedy but it is evident that it is difficult to implement the order for remedy due to the unknown whereabouts of the employee

2. Where it is difficult to comply with an order for remedy due to a natural disaster, incident, or any other unavoidable reason.

Article 15 (Refund of Non-performance Penalties)

(1) Where an order for remedy issued by a Labor Relations Commission is cancelled according to a retrial decision of the National Labor Relations Commission or final judgment of a court, a Labor Relations Commission shall immediately suspend the imposition and collection of charges for compelling the performance and refund the charges for compelling the performance already collected

When this Do Council member returns a charge for compelling compliance under subparagraph 1, he/she shall return it by adding an amount calculated by multiplying the interest rate determined by Ordinance of the Ministry of Labor to the period from the date when the charge for compelling compliance is paid to the return date.

(3) Detailed procedures for refunding enforcement fines under paragraph (1) shall be prescribed by Ordinance of the Ministry of Labor.

Labor Relations Commission Rules

Article 77 (Direction for Implementation of Orders for Remedy)

The chairperson of the Labor Relations Commission may keep a record of the result of the implementation of the order for remedy, such as unfair dismissal, in attached Form 24, in a delivery system. In such cases, he/she shall inform the employer that the charge for compelling compliance is imposed unless the order for remedy is not complied with by the deadline for implementation.

Article 78 (Verification of Implementation of Orders for Remedy)

The Labor Relations Commission shall promptly confirm whether the order for remedy has been complied with after the deadline for performance of the order has expired, such as unfair dismissal.

Article 79 (Standards for Implementation of Orders for Remedy)

Whether to implement an order for remedy, such as unfair dismissal, shall be determined in accordance with the following standards: Provided, That where the parties have agreed with any content different from the previous order, such as unfair dismissal, it shall be deemed that the order for remedy has been complied with:

1. Whether a worker has granted the same class of duties as at the time of dismissal, etc. and has granted other duties with the consent of the relevant worker: Provided, That where there occurs any inevitable reason such as absence of the same class or duty, etc., whether a similar class or duty has been granted;

2. Whether an amount equivalent to wages has been paid in full by the deadline for performing the order for remedy.

3. Whether the relief order, the contents of which are monetary compensation, is paid in full or in full;

4. Whether other remedy orders have been complied with as described in the order.

Article 80 (Advance Notice of Imposition of Charges for Compelling Execution)

(1) A Labor Relations Commission shall give prior notice of the imposition of a non-performance penalty in attached Form 25 to an employer who fails to comply with an order for remedy, such as unfair dismissal, by 30 days prior to the scheduled date of imposition of the non-performance penalty.

(2) In cases falling under paragraph (1), an employer shall be given an opportunity to submit opinions in writing within ten days.

(3) If no opinion is submitted within the period under paragraph (2), it shall be deemed that there is no opinion.

Article 81 (Imposition of Non-performance Penalties)

(1) The chairman of the Labor Relations Commission shall convene an association of adjudication members for the imposition of charges for compelling the performance ten days prior to the scheduled date of imposition under Article 80 (1).

(2) Where a notice of calling a meeting under paragraph (1) is given, an investigation report on the result of implementing an order for remedy for unfair dismissal issued in attached Form 26 and an employer's opinion shall be sent to the members.

(3) The Adjudication Committee shall determine the amount of charges in accordance with the calculation standards set forth in attached Table 3 of the Enforcement Decree of the Labor Standards Act, taking into consideration the degree of employer's liability, such as intentional motive and negligence in dismissal, etc., the degree of effort to implement the order for remedy, the period of non-compliance with the order for remedy, etc. based on the results of the investigation report on the performance of

(4) When the amount of charges under paragraph (3) is determined, the chairperson of a Labor Relations Commission shall impose a charge for compelling the performance in accordance with the written decision on imposition of charges for compelling the performance in attached Form 27. In such cases, the deadline for

(5) Where it is impracticable to pay a non-performance penalty within the payment deadline under paragraph (4) due to a natural disaster, incident, or other inevitable circumstances, the Adjudication Committee may set a period not exceeding 15 days from the date on which such cause or event ceases to exist.

Article 82 (Exemption from Charges for Compelling Execution)

(1) Deleted.

(2) Where the Adjudication Committee fails to comply with an order for remedy due to unavoidable reasons, such as the unknown whereabouts of workers, etc. or the occurrence of natural disasters, etc. even though the employer has endeavored to comply with the order for remedy, as prescribed in Article 14 of the Enforcement Decree of the Labor Standards Act, it may postpone the imposition of a non-performance penalty upon the employer’s application or ex officio,

(3) When the Adjudication Committee makes a decision under paragraph (2), the chairperson of a Labor Relations Commission shall notify the user of such fact in accordance with the written decision in attached Form 27.

Article 83 (Additional Imposition of Charges for Compelling Execution)

(1) Where an employer fails to comply with an order for remedy, such as an unfair dismissal, the Labor Relations Commission may impose a charge for compelling compliance up to four times in total from the date of the order for remedy up to one year.

(2) The repeated imposition of a non-performance penalty shall be made within six months from the date at which the previous non-performance penalty is paid. Articles 78 through 81 shall apply mutatis mutandis to the procedure for imposing such non-performance penalty, such as the verification of compliance, investigation of and reporting on the results of implementation, holding of the Adjudication Committee, decision on the imposition

Article 84 (Accusation)

(1) Where a Labor Relations Commission fails to comply with an order for remedy which becomes final and conclusive by the confirmation or filing of an administrative litigation pursuant to Article 31 (3) of the Labor Standards Act (including a decision on review, the contents of which are the previous order), it shall file a complaint with the competent regional labor office in accordance with the decision of

(2) An accusation under paragraph (1) shall be filed in attached Form 28.

(3) The Labor Relations Commission may, before filing the accusation under paragraph (1), notify the relevant employer of the scheduled date of accusation, etc. and urge him to comply with the order for remedy such as unfair dismissal.