Whether or not there is a duty to pay leave allowances to a worker who has been disciplined.

Article 38 of the Labor Standards Act refers to a case where an employer is unable to receive labor from an employee due to a cause attributable to the employer, in whole or in part of the enterprise, for which the employer is responsible, because the employer does not have a duty to pay leave allowances to the worker concerned if the worker leaves the workplace by taking disciplinary measures, such as dismissal, for the reason of violating the rules of employment of the worker, and this does not change the conclusion on the ground that the above disciplinary measure has been cancelled by the authority and the worker has re-re-paid.

Article 38 of the Labor Standards Act

Defendant

Prosecutor

Attorney(s)-at-law(s)

Seoul Criminal Court Decision 85No579 delivered on January 17, 1986

The appeal is dismissed.

We examine the prosecutor's grounds of appeal.

Article 38 of the Labor Standards Act provides that a temporary shutdown allowance shall be paid to the worker concerned in cases where the worker suspends his/her business due to a cause attributable to the employer, and the term “where the worker suspends his/her business” refers to cases where the employer is unable to receive work from the worker due to a cause attributable to the employer, in whole or in part, the worker is not obligated to pay the temporary shutdown allowance to the worker concerned in cases where the worker leaves his/her job by taking disciplinary measures, such as dismissal, etc. for the reason of violating the rules of employment of the worker, and the above legal principle does not change the conclusion on the ground that the disciplinary dismissal is revoked by the authority and the worker is re-re-re-paid.

This is because, since a worker who is subject to disciplinary action already leaves the status of a worker, it is not possible to suspend his/her business based on the premise that his/her status is maintained, and even if his/her dismissal is cancelled by the authorities, the employer can not regard the period of disciplinary action as the period of suspension, regardless of the fact that the employer is liable for civil and criminal liability due to unfair labor practice.

According to the reasoning of the judgment below, the court below held that the defendant's disciplinary dismissal against the non-indicted who is a worker does not constitute a crime in violation of Article 110-2 and Article 38 of the Labor Standards Act because he did not pay a shutdown allowance after the disciplinary dismissal. Such fact-finding and judgment are just in the same purport as above, and there is no error of law by misunderstanding the legal principles like the theory of lawsuit or by violating the rules of evidence.

Therefore, the appeal is dismissed. It is so decided as per Disposition by the assent of all participating judges.

Justices Lee Byung-su (Presiding Justice)

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