2014Guhap62135 Demanding revocation of an application for the difference in childcare leave benefits;

A

The Seoul Regional Employment and Labor Agency Head of the Seoul Regional Labor Office

November 6, 2014

November 27, 2014

1. On April 28, 2014, the disposition that the Defendant rendered to the Plaintiff on April 28, 2014 revocation of the return of the application for the difference payment of childcare benefits.

The same shall apply to the order.

1. Details of the disposition;

A. The Plaintiff is working at the Korea Workers’ Compensation and Welfare Service and was on childcare leave from January 2, 201 to January 1, 2012, and from October 31, 201 to October 30, 2013. The Plaintiff was paid childcare leave according to the monthly ordinary wage calculated by the Defendant in relation to the aforementioned period of childcare leave.

B. On April 24, 2014, the Plaintiff submitted an application to the Defendant stating that “The Defendant is obligated to pay the difference between bonuses, long-term service allowance, meal allowance, transportation subsidy, and customized welfare card amount to ordinary wages, and thus, the Defendant is obligated to pay the difference between the childcare leave already paid and the childcare leave already paid based on the fixed ordinary wages as above.” The Defendant submitted an application to the Plaintiff that “the Defendant shall revoke the partial payment of the land for childcare benefits to the Plaintiff. The Defendant shall pay the difference between the childcare leave benefits calculated based on the fixed ordinary wages and the childcare leave benefits already paid to the Plaintiff, by including bonuses, etc. (hereinafter “instant application”).

C. In order to verify the purport of the instant application on the same day, the employee in charge of the Defendant called the Plaintiff to the certified labor affairs consultant B, who was delegated with all the authority to apply for childcare benefits. The purport of the application is the re-determination of the property for childcare benefits according to ordinary wage. If the objection form is not a legitimate request, such as a request for examination or administrative litigation, I would like to confirm the corresponding Defendant’s opinion. The Defendant would want to confirm the corresponding Defendant’s opinion on the corresponding treatment even if it is the peremptory period under the Guidelines

D. On April 25, 2014, the Plaintiff submitted to the Defendant a document stating that “The purport of the submission of the instant application is not that of the request for review, and thus, the return disposition is not requested. It is not that of the request for review.”

E. On April 28, 2014, the Defendant returned to the Plaintiff the instant application to the effect that “the Plaintiff requested the return of the instant application. It is possible to file an administrative litigation within 90 days from the date it became aware of the original disposition, and within one year from the date it became possible to file an application” (hereinafter “instant disposition”).

F. On May 26, 2014, the Plaintiff applied for the difference payment of childcare leave benefits to the Defendant again on the same purport as the instant application, and the Defendant considered the said application as a request for review on the instant disposition, and the employment insurance examiner dismissed the Plaintiff’s application on June 17, 2014. [Grounds for recognition] The Plaintiff did not dispute, as to the absence of dispute, Gap evidence 1, Gap evidence 4, Gap evidence 5, Eul evidence 1 through 5, Eul evidence 1 through 5, Eul evidence 7 through 21 (including spot numbers), the purport of the entire pleadings, and the purport of the whole pleadings.

2. Determination on this safety defense

A. The defendant's assertion

The return of the instant application is merely based on the Plaintiff’s request for return, and is not an administrative disposition, because it does not refuse the Plaintiff’s request. Moreover, the Plaintiff was aware of the disposition regarding childcare benefits on November 7, 2013, or November 8, 2013, at least the final payment of childcare benefits, and filed the instant lawsuit after the lapse of 90 days thereafter.

(b) Markets:

The Defendant returned all of the instant applications to the Plaintiff on the ground that “the Plaintiff requested the return of the instant applications” and “the Plaintiff requested the return of the applications.”

However, in full view of the aforementioned facts and the purport of the argument, the following circumstances, namely, ① the Plaintiff filed the instant application with the purport that “the Plaintiff shall pay the difference between the childcare leave and the childcare leave paid to the Plaintiff calculated on the basis of the ordinary wage determined by including bonus, etc. ② the Plaintiff’s agent stated that “the purpose of the application is to request the Defendant’s opinion because it is not a request for review,” ③ the Plaintiff appears to seek a refusal disposition stating the procedure of objection, rather than seeking the return of documents on the premise of withdrawal of the application. The Plaintiff’s refusal disposition against the instant application constitutes an appeal litigation, and the Plaintiff may file an appeal litigation, and ⑤ the Plaintiff’s determination on the Defendant’s ordinary wage (Supreme Court en banc Decision 2012Da94643, Dec. 18, 2013). Accordingly, the Plaintiff’s allegation that the instant administrative disposition is not necessary for the Plaintiff’s filing the instant application by misapprehending the purport of the administrative disposition’s request to determine whether the payment of childcare leave should be included in ordinary wage.”

Article 70(2) of the Employment Insurance Act provides that a person who intends to receive childcare leave shall file an application within 12 months from the first month after the commencement of the childcare leave, and Article 107(1) of the Employment Insurance Act provides that the right to receive childcare leave shall expire if it is not exercised for three years. Therefore, a person who intends to receive childcare leave benefits may file a claim for payment of childcare leave benefits again with the defendant if the right to receive childcare leave benefits has not expired by prescription. If the right to receive childcare leave benefits has not expired by prescription, the rejection disposition may still be subject to an appeal litigation, and the period of filing a lawsuit shall be determined based on new rejection disposition. However, as seen earlier, the Plaintiff’s refusal of a new claim is not a dispute over a partial payment of childcare leave benefits in the past, i.e., the Plaintiff’s refusal of a new claim, and it is apparent that the Plaintiff filed the instant lawsuit within 90 days from the date when the Plaintiff became aware of the instant disposition. Therefore, the Defendant’s assertion that the instant lawsuit has expired is unlawful.

3. Whether the instant disposition is lawful

A. The plaintiff's assertion

Bonuses, long-term continuous service allowances, meal subsidies, transportation subsidies, and customized welfare cards constitute ordinary wages as fixed wages to be paid periodically and uniformly during the period of wage calculation, regardless of the actual number of working days or the amount received. Therefore, the Defendant is obligated to pay the difference between the fixed amount of childcare benefits including the ordinary wages and the already received childcare benefits. Therefore, the instant disposition that rejected the instant application is unlawful.

(b) Markets:

The meaning of "the plaintiff's request for disposition of objections" is that it is reasonable to interpret that the plaintiff seeks a substantial judgment (a disposition necessary to file an administrative lawsuit) on the application of this case, and therefore, the disposition of this case is unlawful (the defendant must review and dispose the application of this case again) with the ground that the request for return of this case was made (the defendant must review and dispose the application of this case).

4. Conclusion

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

The presiding judge, judges and vice-ranking

Judges Kim Yong-han

Judges Kim Jae-hwan