Busan Metropolitan City (Attorney Seo-jin, Counsel for the defendant-appellant)

The Chairman of the National Labor Relations Commission

Defendant 1 and one other (Law Firm Inn, Attorney Cho Jae-ju, Counsel for the defendant-appellant)

September 13, 2017

1. The plaintiff's claim is dismissed.

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

The decision made by the National Labor Relations Commission on October 14, 2016 between the Plaintiff and the Intervenor joining the Defendant (hereinafter referred to as “the Intervenor”) is revoked with respect to the case of unfair dismissal relief application which was filed by the Central Committee, No. 817, 2016.

1. Details of the decision on retrial;

A. The Plaintiff is a local government that deals with autonomous affairs within its jurisdiction and administrative affairs prescribed by statutes under the Local Autonomy Act, and the Superintendent of the Busan Metropolitan City Office of Education shall represent the affairs related to education and arts pursuant to Article 18 of the Local Education Autonomy Act. An intervenor 1 is an intervenor 1 and an intervenor 2 is notified of the expiration of the contract term on February 29, 201, while employed as an English language specialist at a school affiliated with each Plaintiff as an English language instructor on March 1, 2011.

B. On April 14, 2016, the intervenors filed an application for remedy with the Busan Regional Labor Relations Commission by asserting that the Plaintiff’s notification of the expiration of the term of the labor contract constitutes unfair dismissal, and the Busan Regional Labor Relations Commission recognized that the Intervenor’s notification of the expiration of the term of the contract was unfair (hereinafter “the first inquiry tribunal”).

C. On July 21, 2016, the Plaintiff dissatisfied with the initial inquiry tribunal, filed an application for reexamination with the National Labor Relations Commission, but the National Labor Relations Commission dismissed the Plaintiff’s application for reexamination on October 14, 2016 (hereinafter “instant reexamination decision”).

(In the absence of dispute, Gap evidence No. 1, the purport of the whole pleadings

2. Whether the decision on the retrial of this case is lawful

A. The plaintiff's assertion

1) According to Article 42(2) of the Enforcement Decree of the Elementary and Secondary Education Act, industrial-educational teachers, including specialized English lecturers, are appointed by the head of a school in the case of national and public schools. Therefore, the standing to apply for unfair dismissal is limited to the head of a school at each level, who is the appointing authority, and the decision of reexamination of this case which accepted the application by intervenors for unfair dismissal, although the Plaintiff did not have the standing to apply for unfair dismissal relief, is illegal.

2) A labor contract concluded by the Intervenor prior to March 1, 2012 was terminated as the expiry of the term of the labor contract, and the fixed-term labor contract was newly concluded since March 1, 2012. Therefore, the Intervenor’s decision on the reexamination of this case was unlawful, since the contract was lawfully terminated upon the expiration of the term of the contract on February 29, 2016, and was not unreasonable.

3) The English language specialist is a business that temporarily operates English education teachers to fill the gap in English language until the regular teachers in schools can sufficiently proceed with the expanded English classes in each level of schools. As such, it constitutes an exception to indefinite contracts under the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (hereinafter “ Fixed-Term Act”), it constitutes a business that provides jobs promoted as part of the government’s welfare policies and unemployment measures. Therefore, even if the period of restriction exceeds four years, the Intervenor cannot be deemed to have been converted into an inorganic contract worker, and thus, the retrial decision of this case is unlawful.

B. Relevant statutes

It is as shown in the attached Form.

(c) Fact of recognition;

In light of the facts without dispute, Gap's evidence Nos. 1, 7, 8, Eul's evidence Nos. 1 through 15, Eul's evidence Nos. 1 through 11, 13 through 18, 20 through 25, 28 through 30, 32 and 35, the following facts are acknowledged if the purport of the whole pleadings is shown in each statement of evidence Nos. 1, 7, 8, Eul's evidence No. 1 through 15

1) Operation of the Plaintiff’s professional English instructor system

A) In 2009, the Minister of Education, Science and Technology determined to introduce the English language professional instructor system in order to strengthen the English education of elementary, middle and high schools, and prepared a business manual of the English professional instructor system (hereinafter “business manual”) under the detailed operational guidelines, and on March 31, 2009, publicly announced the recruitment of specialized English instructors in the name of the Minister of Education, Science and Technology and the 16 City/Do superintendent of education in 2009.

A table in the main sentence of the 2009 E.S. Report on the Recruitment of Specialized English Instructors in English in the Elementary, Middle, and High Schools - The role of specialized English language instructors in creating an environment of English education in order to improve communication ability in practical English-centered by expanding teaching staff with English expertise in elementary, middle, and high schools - the role of the specialized English language instructors in charge of additional lessons following the expansion of traveling classes at the level of elementary, middle, and high school - the project operator who reduces the burden of current English teachers on their duties by taking charge of English-related affairs, such as the management of assistant teachers in English language, and the management and development of English teaching materials: 16 City/Do offices of education and each level of school: 5,000 (2,00 elementary, middle, and 3,00 middle, middle, and high schools): The placement of 0 persons across the country:

B) For the purpose of the reorganization of English lecturers at the end of each semester and the promotion of budget affairs, the Plaintiff investigated whether the English language lecturers at the end of each semester have the intent to work in other schools in accordance with the Plaintiff’s adjustment arrangement in the course of investigating whether to renew the contract. The Plaintiff determined the placement and re-assignment of the English language lecturers at each school according to the survey result.

C) The Plaintiff prepared “the manual for the selection of professional English language instructors for each school after 2011, and required them to employ professional English language instructors in accordance with the above manual. The procedure for the selection of professional English language instructors was conducted in the order of “(i) the recruitment plan ? (ii) the recruitment announcement ? (iii) the recruitment announcement ? (i) the second screening (the selection criteria and procedure) according to the school self-plan ? (iv) the consultation on contractual terms ? the verification of disqualifications such as the verification of identity ? (vi) the deliberation of the school steering committee and the personnel committee for school accounting ? (7) the final confirmation and contract.”

D) From around 2011, the Plaintiff sent an official document requesting cooperation in building a pool of human resources to be employed in other schools, if there is a professional English instructor who has not been re-contractualed or re-reconsigned due to the shortage of teaching time at each school. The Plaintiff directed each school to employ a professional English instructor within the said pool of human resources as much as possible in selecting a professional English instructor.

E) The Plaintiff prepared a work manual every year and required each school to comply with it. The said work manual contains specific descriptions of working conditions, work contents, work evaluation, renewal, and termination of employment contracts of professional English instructors. The Plaintiff also determined the specific amount of wages and allowances of professional English lecturers.

F) On May 28, 2013, the Ministry of Government Legislation authoritative interpretation relating to the appointment period of a professional English instructor in English, and the content thereof is that “a person who has served as a professional English instructor for four years and has expired in the same school may be reappointed after undergoing new employment procedures.”

G) In accordance with the authoritative interpretation of the Ministry of Government Legislation, the Plaintiff revised the work manual to the effect that an English professional instructor of the English company whose working period of four years has expired on June 2013 can be employed in the same school through new employment procedures after completing the contract termination procedure (e.g., settlement of retirement allowances, deprivation of qualification for the four major insurance, execution of official notices for the termination of the contract).

2) Circumstances concerning the employment of the Intervenor 1

A) On May 26, 2009, the Plaintiff selected 371 professional instructors in English language as follows, and the Intervenor 1 passed the recruitment examination.

(2) On May 26, 2009, the Minister of Education shall publicly announce a plan for the selection of professional English instructors of 209 also as follows: 1. On May 26, 2009, 145, including the total number of selected persons in the fields of selection and to be selected; 29, 309, 164, 307, and 371, 300: 30,000 and 197: 30,000,000 and 1.371,000,000,000: 1.0,000,000,000,000: 2.0,000,000,000,000,000,000: 1.0,000,000,000,000,000,000,000,000.

B) From September 1, 2009, the Intervenor 1 entered into an employment contract with the head of Busan ○ Middle School and renewed and concluded the employment contract in the year 201 on the grounds that it is scheduled to close the school while working as a professional English instructor, the Intervenor 1 entered into an employment contract in the year 201 with the head of Busan ○○ Middle School and the head of Busan ○○ School from September 1, 201 to February 29, 2012.

C) After the termination of the employment relationship with the Busan ○○ Middle School, the Intervenor 1 was employed at the △△ Middle School on March 1, 2012, based on the pool of professional English instructors managed by the Plaintiff without any separate recruitment procedure, and entered into an employment contract with the head of the △△ middle school. After that, the Intervenor 1 continued to serve in the same school for four years on an annual basis after renewal and conclusion of the employment contract through a regular evaluation procedure, but the head of the △△△△ middle school was the maximum employment period of the professional English instructors on a fixed-term English basis on January 14, 2016, and settled and paid retirement allowances, etc. after notifying the Intervenor 1 of the termination of the employment relationship.

D) On February 2, 2016, the head of △△△ middle school, upon the termination of the employment relationship with the Intervenor 1, based on the 2015 Business Manual, “the 2015 2015 - was published for the recruitment of a professional English instructor.” The Intervenor 1 also applied for the above new employment procedure, but was dismissed from the first document examination.

3) Circumstances concerning the employment of the Intervenor 2

A) On December 6, 2010, the Plaintiff published a recruitment plan for 158 professional instructors in the English language of Busan Metropolitan City, such as the publication of recruitment of professional instructors in the English language, as seen earlier, as seen in the year 2009, and the Intervenor 2 entered the recruitment plan and entered into a labor contract with the head of △ Elementary School and worked on March 1, 201.

B) While the Intervenor 2 was in the middle school English camp in 201, the Intervenor 2 appeared to have been working in the year 201 from the assistant principal of the Seocho Elementary School in the year 2012, the Intervenor 2 was unable to continue to work due to the lack of teaching time in the year 2012, and thereafter, the Intervenor 2 was transferred from the Seocho Elementary School to the △△ Elementary School through the Plaintiff’s new letter of “a notice of the result of the reorganization of the specialized English lecturers in the early 2012 in the early 2012.”

C) On February 29, 2012, 2012, the head of △ Elementary School terminated the labor relationship with the Intervenor 2, and the Intervenor 2 served as a professional English instructor at △△ Elementary School without any separate recruitment procedure from March 1, 2012. The Intervenor 2 served as a professional English instructor at △△ Elementary School every year after undergoing a specific evaluation at △△ Elementary School on an annual basis, and then continued to work for four years after renewal and conclusion of the labor contract with the principal.

D) On January 28, 2016, 2016, ○○ Elementary School Director notified the termination of labor relations and notified the termination of labor relations on February 29, 2016, and announced “the number of years 2015” on January 29, 2016 in accordance with the “2015 Business Manual.” Although the Intervenor 2 applied for it, the Intervenor 2 went away from the primary document examination.

D. Determination

1) Whether the Plaintiff is qualified as a party to the application for remedy against unfair dismissal

A) According to Article 3(1) and Article 9(2)5 of the Local Autonomy Act, a local government shall be responsible for education, sports, culture, and arts promotion within its jurisdiction as a juristic person. Article 2 of the Local Education Autonomy Act provides that "the affairs concerning education, science, technology, sports, and other academic sciences (hereinafter referred to as "education, academic sciences") of a local government shall be the affairs of a Special Metropolitan City, Metropolitan City, and Do (hereinafter referred to as "City/Do")," Article 18 provides that "the Superintendent of an Office of Education shall be the superintendent of an office of education in a City/Do (paragraph (1))," "the Superintendent of an Office of Education shall represent the relevant City/Do with respect to litigation or registration of property due to the affairs under the jurisdiction of education and art (paragraph (2))," and Article 32 provides that "the Superintendent of an Office of Education shall, if necessary, be subject to the authority of an educational institution or local government concerning the affairs under his/her jurisdiction as prescribed by Presidential Decree or municipal ordinances."

In addition, Article 20 of the Local Education Autonomy Act provides that the Superintendent of an Office of Education shall take charge of the operation of curricula concerning education, arts and science, personnel management of state public officials and local public officials belonging to the relevant City/Do, and other matters concerning education and arts of the relevant City/Do. Article 105 of the Local Autonomy Act provides that "the head of a local government shall direct and supervise his/her employees and handle matters concerning the appointment, dismissal, education, service, disciplinary action, etc. as prescribed by statutes, ordinances and regulations." In light of this, the right to appoint and dismiss school teachers of various levels, including English language instructors, etc., is granted to the Superintendent of an Office of Education. However, considering the convenience of employment procedures and autonomy of school operation, it is reasonable to view that the principal of each level is ultimately responsible for the employment of teachers, etc. on behalf of the principal of each level of school. Accordingly, even if an employment contract is concluded in the name of the principal of each school, such circumstance alone alone does not constitute individual public school or the principal of each school.

Furthermore, Article 30-2(2) of the Elementary and Secondary Education Act provides that revenues, such as money transferred from the general accounts of the State or the special accounts for educational expenses of local governments, money transferred from the school development fund, subsidies and subsidies of the State or local governments, etc., shall be revenues of the school accounting. According to Article 30-3(6) of the same Act, “The matters necessary for the operation of the school accounting shall be determined by the Ordinance of the Ministry of Education in the case of national schools, and by the Educational Rules of the City/Do in the case of public schools, in the case of national schools, and by the Educational Rules of the relevant City/Do in the case of public schools,” so long as considerable of the funds used by various public schools for personnel expenses

B) On May 26, 2009 and December 6, 2010, the Plaintiff publicly announced a plan for the selection of a professional English instructor on the English language as of December 26, 2010, and publicly announced the overall matters concerning the selection field, qualification for appointment, working conditions, work schedule, duties in charge, appointment procedure, contract period, issuance of application form, decision of successful applicants, etc., while conducting a demand survey on the English language instructor at each school to which the Plaintiff belongs. Upon the termination of employment contract at each school to which the Intervenor first passed and served, the Plaintiff conducted a demand survey on the English language instructor at each school, and conducted a demand survey on the English language instructor at each other without undergoing a separate recruitment procedure in accordance with the measures taken by the Plaintiff, and the fact that the management, treatment, working conditions, and personnel management, in addition to the appointment of the professional English language instructor, have been conducted uniformly based on the Plaintiff’s guidelines. As such, the Plaintiff is deemed to have the status of each principal and each school principal, and the Plaintiff’s assertion that the applicant’s application for remedy is justified.

2) Whether the Intervenor is converted to an inorganic contract employee pursuant to Article 4(2) of the Fixed-term Contract Act

A) Relevant regulations and legal principles

(1) Article 22 of the Elementary and Secondary Education Act provides that schools may have industrial-educational teachers, honorary teachers, instructors, etc. in addition to ordinary teachers to take charge of educating students. Accordingly, matters necessary for the kinds, qualifications, appointment, etc. of industrial-educational teachers, etc. established in schools shall be prescribed by Presidential Decree. Article 42(1) of the Enforcement Decree of the Elementary and Secondary Education provides that industrial-educational teachers, honorary teachers, English language instructors, multicultural language instructors, and instructors as types of industrial-educational teachers, etc., and Article 42(5) of the Enforcement Decree of the Elementary and Secondary Education provides that when an English language instructor under Article 4(1) of the same Act is appointed within a fixed period of not more than one year, the continuous working period may be extended by up to four years. Meanwhile, according to Article 4(1)6 of the Fixed-Term Teachers Act and Article 3(3)1 of the Enforcement Decree of the Fixed-Term Teachers Act, an employer may conclude a separate employment contract for a fixed-term worker exceeding two years (in cases of repeated employment contracts, the fixed-term workers beyond two years.

In full view of the above provisions, in the case of a professional English instructor such as an intervenor, if the total period of continuous work exceeds four years, it shall be deemed as an inorganic contract worker.

(2) The term "total period of continuous employment" here refers to the period until a contract is terminated upon entering into an employment contract. In principle, in the case of an employment contract with a fixed period, the employment relationship is terminated upon the expiration of the contract term. However, in the case of an employment contract with a fixed period, if the employment contract is renewed upon the expiration of the contract term or where the employment contract with the same conditions is repeatedly concluded upon the termination, whether the contract term is renewed or repeated shall be determined after adding up the contract term. Whether the employer has entered into an employment contract with a certain period of time required for the completion of business or the completion of a specific business in a formal form in order to avoid the application of Article 4(2) of the Fixed-Term Employment Act, but whether the continuity of each employment contract can be recognized shall be determined by comprehensively taking into account the motive and background, contents of each employment contract, similarity of the work in charge, length of the blank period, reasons for the occurrence of the vacancy period, method of replacing the work of the worker during the blank period, etc. (see, e.g., Supreme Court Decision 2004Da5616.

B) Specific determination

In full view of the following circumstances, it is reasonable to view that the continuedness of labor relations between the Plaintiff and the Intervenor was not interrupted, and that the Intervenor 1 was converted into an inorganic contract worker on September 1, 2013, and March 1, 2015, respectively, by taking into account the following circumstances that can show the overall purport of the pleadings in the above facts admitted.

(1) From September 1, 2009, the Intervenor 1 continued to serve at a public school belonging to the Plaintiff from March 1, 201, and continued to perform the same duties as an English language instructor.

(2) Even if the Intervenor was employed by another school to which the Plaintiff belongs after completing a series of procedures for termination of the contract, such as settling retirement pay and reporting loss of the four-party insurance contract, etc., in light of the legislative purpose of the Fixed-term Act to contribute to the sound development of the labor market by strengthening the protection of the working conditions of fixed-term workers, etc., the Intervenor’s employment relationship with the Plaintiff cannot be said to have been severed, as long as the Intervenor entered into the same employment contract with the Plaintiff’s head of the public school, after performing the same duties.

(3) The intervenors re-enter the Plaintiff’s other public schools without undergoing a separate recruitment procedure. Since the re-admission of the intervenors, the Intervenor did not re-contract with respect to the English professional instructors whose period of service has expired for a four-year period after the re-admission of the intervenors, and revised the work manual so that they can be re-employed through a new recruitment procedure. The fact that new employment is made in accordance with the above procedure is likely to be based on the purpose of evading the provision of Article 4(2) of the Fixed-term Act by participating in the contract termination procedure or the new recruitment procedure.

(4) The Plaintiff determined that Article 4(2) of the Fixed-term Employment Act does not apply to the recruitment of intervenors through a new recruitment procedure pursuant to the response to the Ministry of Government Legislation that “Article 4(2) of the Fixed-Term Employment Act does not apply to the re-election of intervenors,” and deemed that the Plaintiff was an open recruitment, including an English professional instructor who has already worked for four years, but the employer’s subjective intent does not change the application of Article 4(2) of the Fixed-Term Employment Act. However, the above circumstances do not need to be considered in determining the continuity of labor relations of intervenors.

3) Whether a specialized English instructor constitutes an exception to the conversion of an indefinite contract

A) According to the proviso of Article 4(1)1 and 5 of the Fixed-Term Workers Act, where the period required for the completion of a business or the completion of a specific job is determined, an employer may be employed as a fixed-term worker for more than two years in cases prescribed by the Presidential Decree, where the use of professional knowledge and skills is required, and where the job is offered in accordance with the government’s welfare policy and unemployment measures. Article 3(2)1 of the Enforcement Decree of the Fixed-term Workers Act provides that “Where a job is offered in accordance with government’s welfare policies, unemployment measures, etc. delegated to Article 4(1)5 of the Fixed-term Workers Act, as prescribed by the Presidential Decree,” one of the cases “where a job is provided in accordance with the government’s welfare policies, etc. delegated as prescribed by the Framework Act on Employment Policy

B) Whether a temporary business constitutes an exception to the restriction on the fixed-term employment period

(1) Article 4(1)1 proviso of the Fixed-term Workers Act provides that “a period necessary to complete a business or to complete a specific business” in which an employer may employ a fixed-term worker for more than two years means a case of setting the contract term until the time when the business or a specific business is anticipated to be completed for an objective purpose, such as construction works, a specific program development, or a business for completing a project, etc., and it is obvious that the business or a specific business will be completed after an objective period is determined (see Supreme Court Decision 2016Da25910, Feb. 3, 2017, etc.).

(2) In full view of the following circumstances where the purport of the entire arguments is recognized, the English language specialist cannot be deemed as an exceptional case where the English language instructor falls under a temporary business and is not converted into an indefinite contract, and there is no other evidence to acknowledge it otherwise. The Plaintiff’s allegation in this part is without merit.

(A) The English language professional instructor is a system introduced to enhance the credibility in English public education by strengthening the manpower to be in charge of English education due to the expansion of the number of elementary school lessons, the expansion of the number of school lessons at the middle school level, and strengthening the practical English education for each school unit to enhance the students’ English communication ability.

(B) At around 2009, there is no provision that the English language specialist system is a temporary project, even though a notice of recruitment of a professional English instructor is given.

(C) It is difficult to view that the English language specialist system continues to be maintained in the future, and even in light of the current status of the operation of the English language instructor system or the purport of the introduction of the system, it is difficult to view that the term of the contract is determined until the time when the English language instructor is expected to terminate the business or specific duties objectively for a certain period of time.

C) Whether the provision of employment is an exception to the restriction on the period of employment for fixed-term workers in accordance with government welfare policies, unemployment measures, etc.

(1) Public services provided by the State or a local government to citizens or residents have the nature of services that are socially necessary due to its inherent nature. Therefore, in a case where the State or a local government provides jobs for public services, whether it falls under the proviso of Article 4(1)5 of the Fixed-term Work Act, and Article 3(2)1 of the Enforcement Decree of the Fixed-term Work Act should be determined by comprehensively taking into account various circumstances, such as the background, purpose and character of the relevant project, the continuity of the project, sustainability, etc. (see Supreme Court Decision 2014Da21053, Aug. 18, 2016, etc.).

(2) Taking full account of the following circumstances in view of the purport of the entire arguments as seen earlier, it cannot be deemed as exceptional cases where an English professional instructor provides jobs in accordance with the government’s welfare policy and unemployment measures, etc., and there is no other evidence to acknowledge it otherwise. The Plaintiff’s allegation in this part is without merit.

(A) It is difficult to deem that a specialized English instructor is a temporary one as seen earlier, because it was introduced for the purpose of creating conditions for English education to enhance communication ability centered on practical English by expanding teaching staff with English expertise in elementary, middle, and high schools.

(B) The role of a professional English instructor is research related to English lessons and English education, production of English education-related materials, education and training activities after the end of the regular course of study related to English education, or during the vacation period, work in charge of and support to English English English assistant, management of English-only (experience) class, and other English-related work. It is difficult to view that the content of the work is merely a supplementary and cooperative work.

(C) The Ministry of Education, Science and Technology has paid 40% of the budget related to a specialized English instructor every year as a special subsidy, but it cannot be concluded that the system of a specialized English instructor cannot be maintained even if the special subsidy is not paid.

(D) Even if the Government’s job creation purpose was incidental to the English language instructor system, the applicant’s primary purpose is to recruit English professors to strengthen English public education. The qualification for the English language instructor is premised on the ability as a professional English instructor. Thus, the applicant cannot be deemed to constitute a vulnerable class in employment under the Framework Act on Employment Policy.

4) Sub-committee

Therefore, it is reasonable to view that the intervenors continued to work for more than four years from September 1, 2009, and the Intervenor 2 from March 1, 2011 to February 29, 2016, as part of a fixed-term worker, while repeating the contract renewal and re-employment procedures several times as part-time workers. Accordingly, the Intervenor is deemed to have been converted to an inorganic contract employee under Article 4(2) of the Fixed-term Contract Act. Ultimately, the notice of the expiration of the contract term of February 29, 2016 to the Intervenor constitutes an unfair dismissal, and the instant decision on reexamination is lawful on such premise.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and it is so decided as per Disposition.

[Attachment]

Judges Park Jong-man (Presiding Judge) (Presiding Justice)