[1] The standard for determining whether the term "period of suspension of business limited to dismissal" under Article 30 (2) of the former Labor Standards Act constitutes "period of suspension of business"

[2] In a case where the issue is whether the dismissal of a worker Gap constitutes "retirement during the period of suspension of business" under Article 30 (2) of the former Labor Standards Act, the case holding that the above dismissal does not constitute dismissal during the period of suspension of business under Article 30 (2) of the former Labor Standards Act on the ground that there was no objective need for the suspension of business for occupational injury and disease at the time of dismissal, and that there was no reason that the Korea Labor Welfare Corporation approved the medical care for the period including the time of dismissal and paid temporary disability compensation benefits after the dismissal, on the ground that there was a circumstance that the Korea Labor Welfare Corporation approved the

[1] According to Article 30(2) of the former Labor Standards Act (wholly amended by Act No. 8372, Apr. 11, 2007; hereinafter “former Labor Standards Act”), an employer is unable to dismiss an employee during a period of suspension of work for medical treatment of occupational injury or disease, and 30 days thereafter. This is to protect an employee, who is deprived of the labor force due to occupational accidents, and 30 days thereafter, absolutely from the threat of his/her position. Therefore, even if an employee is under medical treatment due to occupational injury, even if he/she is under medical treatment, it does not fall under the period of suspension of work, but where it is deemed necessary to suspend his/her work for medical treatment due to occupational injury, it does not fall under the period of suspension of work under the aforementioned provision. As such, the court should determine whether there is an objective reason for dismissal of the employee, such as the period of suspension of work, without considering the employer’s demand for medical treatment, and thus, it does not constitute an objective reason for dismissal of the employee.

[2] In a case where the issue is whether dismissal of a worker Gap constitutes dismissal during the period of suspension of business under Article 30 (2) of the former Labor Standards Act (wholly amended by Act No. 8372 of Apr. 11, 2007; hereinafter "former Labor Standards Act"), the case holding that the dismissal does not necessarily constitute dismissal during the period of suspension of business under Article 30 (2) of the former Labor Standards Act, on the grounds that it is difficult to view that the dismissal of the worker Gap could not have been performed in a normal way at the time of dismissal, in light of all the circumstances, including the fact that it was difficult to deem that the worker Gap could not have performed his duties in a normal way, and it is objectively determined based on the situation at the time of dismissal as to whether the worker Gap was in need of suspension of business at the time of dismissal, on the ground that the Korea Labor Welfare Corporation approved medical care for the period including the time of dismissal and paid temporary layoff benefits after the dismissal.

[1] Article 30(2) of the former Labor Standards Act (wholly amended by Act No. 8372 of Apr. 11, 2007); Article 202 of the Civil Procedure Act / [2] Article 30(2) of the former Labor Standards Act (wholly amended by Act No. 8372 of Apr. 11, 2007); Article 202 of the Civil Procedure Act

[1] Supreme Court Decision 91Nu3321 delivered on August 27, 1991 (Gong1991, 2453)

Plaintiff (Law Firm Dupop et al., Counsel for the plaintiff-appellant)

Samsung Life Insurance Co., Ltd. (Law Firm Shin & Yang, Attorneys Lee Jae-jin et al., Counsel for the defendant-appellant

Seoul High Court Decision 2008Na114900 decided July 10, 2009

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

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

1. According to Article 30(2) of the former Labor Standards Act (wholly amended by Act No. 8372, Apr. 11, 2007; hereinafter the “former Labor Standards Act”), an employer is unable to dismiss a worker during a period of suspension of work for medical treatment of occupational injury or disease, and 30 days thereafter. This is to protect a worker absolutely from a threat of his/her position during the period during which the worker loses his/her labor force due to occupational accidents and the period during which the worker loses his/her labor force and 30 days thereafter. Therefore, even in cases where the worker is under treatment due to occupational injury, even if he/she works normally without suspending his/her business, or where it is deemed necessary to suspend his/her business for medical treatment due to occupational injury, etc., if it does not constitute a suspension of business limited to dismissal as prescribed by the said provision (see Supreme Court Decision 91Nu321, Aug. 27, 191, etc.).

In this context, the term "ordinary work" refers to a case where the work is not simply worked and the work is provided with normal labor force. Therefore, even though it is necessary to suspend the work for medical care objectively, it does not correspond to the case where the work is worked for other reasons, such as the employer's request, etc.

The issue of whether a business suspension is required for the medical care should be determined by comprehensively taking into account objective circumstances, such as the degree of occupational injury, the treatment process and method of treatment such as injury, the content and intensity of the work, and the worker's attitude. Therefore, the circumstances before and after the dismissal, for which the approval of the medical care under the Industrial Accident Compensation Insurance Act was granted and the temporary layoff benefits were paid, may serve as a reason to consider in determining whether the dismissal constitutes dismissal during the period of temporary closure under Article 30 (2) of the former Labor Standards Act, but the court shall, without binding force, make a decision on whether it is necessary to suspend the business for the medical care at the time of the dismissal.

2. According to the reasoning of the lower judgment and the reasoning of the first instance judgment as cited by the lower court, the lower court determined that the dismissal of the instant case did not constitute dismissal during the period of temporary closure under Article 30(2) of the former Labor Standards Act on the ground that the Plaintiff did not seem to have been in need of temporary closure for medical care due to the loss of labor force at the time

A. In a lawsuit seeking cancellation of the Plaintiff’s application for postponement of medical care on the ground of anxiety, the court rendered a judgment revoking the non-approval disposition, but the above revocation judgment was merely revoked the Plaintiff’s non-approval disposition for extension of medical care until April 24, 2004.

B. The Plaintiff began to receive treatment such as depression from February 2002 around the time of receipt of the transfer order as the Defendant’s Daegu Corporation’s business office, and complained of the same symptoms continuously for four years until October 25, 2006, the date of dismissal of the instant case.

C. During the four years above, the Plaintiff filed various lawsuits, complaints, etc. while continuously resisting that the Defendant’s employees were dismissed, obstructed duties, etc., and repeated the unauthorized deprivation and habitually dismissed, etc., and that the court already recognized the transfer order and the suspension order as justifiable was erroneous.

D. On January 2004, the reply of the opinion of the doctor in charge to the plaintiff prepared at the time of the application for postponement of the above medical care was made twice a month, and it seems that the plaintiff is able to receive the medical care pursuant to the future treatment system (at least once a month after the completion of the medical care). The plaintiff himself/herself postponed the medical care on the ground that it is disadvantageous to the lawsuit in progress even after the completion of the medical care was approved.

E. In a lawsuit seeking the revocation of the postponement of medical treatment as above, a physical assessment against the Plaintiff was conducted upon commission of the court. The physical assessment written as of September 29, 2006, which was around the date of dismissal of the instant case, stated that if the Plaintiff is subject to mental treatment, it is not an impossible condition of loss of labor.

3. In accordance with the legal principles as to the period of restriction on dismissal under the Labor Standards Act, whether the court below determined that the dismissal in this case was not a suspension period of dismissal under the Labor Standards Act shall be determined as follows: (a) whether there was an objective necessity for the Plaintiff to suspend business for the medical care of an occupational injury or disease, i.e., une., une., depression during the time of the dismissal in this case; and (b) whether the above injury or disease

However, as seen earlier, the court below reasoned that there was a ground for determining whether the Plaintiff was required to suspend business at the time of the dismissal, and that there was a ground for dismissal for the Plaintiff to continue to receive treatment such as depression from February 2002 to the time of the dismissal, or that there was a reason for dismissal from the time of the dismissal. However, these reasons are not directly related to the necessity of the suspension of business. However, according to the records, the Plaintiff continued to work until October 25, 2006, which was the date of the dismissal, after returning to work after February 7, 2004, after which the first approval of the medical care was terminated, and received hospital treatment with anxiety during 2006 only one time after receiving a hospital treatment, and that the Plaintiff did not know that there was a need to perform the Plaintiff’s work by visiting the Plaintiff at the time of the dismissal without approval of the medical care, and that there was no other objective reason for the Plaintiff’s medical treatment as well as the Plaintiff’s medical treatment at the time of the dismissal.

In addition, according to the records, the plaintiff obtained the approval of the medical care period from the Korea Workers' Compensation and Welfare Service on July 29, 2003 to January 24, 2004, and again applied for the extension of the period from July 25, 2003 to February 24, 2004, but the Korea Workers' Compensation and Welfare Service rejected it, and filed a lawsuit seeking cancellation of the disposition with the court. On February 7, 2004, the time when the plaintiff applied for the extension of the medical care, the court affirmed the plaintiff's claim on the ground that the plaintiff's unstable symptoms were not fixed and the medical effect could have been expected by continuously receiving the medical care. The Korea Workers' Compensation and Welfare Service, after the above judgment became final, approved the extension of the medical care period from April 4, 200 to May 29, 2009, and it does not necessarily need to be determined as to whether the plaintiff was dismissed, including the above time of dismissal.

4. Therefore, the court below did not err by misapprehending the legal principles on the period of suspension of dismissal under Article 30 (2) of the former Labor Standards Act, as alleged in the ground of appeal.

Therefore, the appeal is 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.

Justices Park Ill-sook (Presiding Justice)