In a case where Party A, who had been employed as a fixed-term teacher at an elementary school after retired from office as a teacher, applied for correction to the competent Regional Labor Relations Commission, on the ground that “the principal of the school was appointed as a full-time teacher and did not pay wages during the school period excluding the fixed-term teacher during the contract period,” etc. constitutes discriminatory treatment, the case holding that the above treatment constitutes discriminatory treatment without reasonable grounds.

In a case where Gap, who was employed as a teacher and worked as a fixed-term teacher at an elementary school after his retirement, applied for correction to the competent Regional Labor Relations Commission and the National Labor Relations Commission on the ground that "the head of the school did not pay wages during the school period excluding regular school teachers who were employed as a teacher in the first semester of 201, unlike regular school teachers, during the school term of the school year excluding regular school teachers who were employed as a teacher during the school period excluding the regular school term excluding the regular school teacher, the case holding that Gap constitutes a comprehensive treatment of school teachers, on the ground that not only the first semester of 2011 but also the second semester of the school year, and provided guidance services for students and parents as a class teacher during the summer school period, and that the relevant elementary school did not provide guidance services for the school year as a teacher during the summer school year of 2011. However, even in the case of regular school teachers, there is no special need to perform his/her duties within the summer school period, and there is no need to discriminate his/her daily treatment.

Article 8(1) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers

Plaintiff (Law Firm Han, Attorneys Park Jong-ok et al., Counsel for plaintiff-appellant)

The Chairman of the National Labor Relations Commission

November 6, 2012

1. Of the decision made by the National Labor Relations Commission on April 12, 2012 on a request for reexamination of discrimination against 2012 between the Plaintiff and the Gyeong-do, the decision made regarding the exclusion of the school period from the contract period shall be revoked.

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

The same shall apply to the order.

1. Details of the decision on retrial;

A. The Plaintiff was in office as a teacher from March 10, 1973 to March 10, 2003, and thereafter was in office as a fixed-term teacher at the ○○ Elementary School established and operated by Gyeongnam-do (hereinafter “○○ Elementary School”) from March 1, 2009.

B. On October 18, 201, the Plaintiff asserted that “the principal of ○○○ Elementary School (hereinafter “the principal”) appointed the Plaintiff as a regular teacher in the first semester in 201, and applied for correction to the Gannam Regional Labor Relations Commission on October 18, 201, asserting that “the Plaintiff’s regular teacher in the middle school term, other than regular teacher in the middle school term (hereinafter “first treatment”) did not pay wages during the period of the school term (hereinafter “first treatment”) and the Plaintiff’s salary class for the Plaintiff, limited the Plaintiff’s salary class 14, and excluded the Plaintiff from the subject of the salary class during the period of the contract (hereinafter “second treatment”) constitutes discriminatory treatment.”

C. On December 27, 2011, the Gyeongnam Regional Labor Relations Commission dismissed the application for correction on the ground that “the first treatment does not fall under the area in which discriminatory treatment is prohibited, and the second treatment constitutes disadvantageous treatment, but there are reasonable grounds.”

D. The Plaintiff filed an application for reexamination with the National Labor Relations Commission, but the National Labor Relations Commission dismissed the said application for reexamination on April 12, 2012 (see Evidence A 2; hereinafter “instant decision on reexamination”).

Although the period of the determination of the attached ○○ 1 treatment included in the main text includes unfavorable treatment, it is difficult to see that an employer has a duty to conclude a contract including fixed-term teachers and vacations, and considering the circumstances that ○○ ○ ○ ○ ○ ○ n elementary school has almost not operated educational programs due to the special circumstances such as classroom floor construction, etc. during the period of the above vacation, it is disadvantageous treatment to restrict the Plaintiff’s salary class 14 without raising the Plaintiff’s salary class regardless of his career as a teacher for the above vacation 2 treatment. However, this is not a decision by the employer, but a decision based on the relevant Acts and subordinate statutes, such as the State Public Officials Act, the Public Educational Officials Act, and the Public Officials Remuneration Regulations, and there are reasonable grounds for the above treatment.

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1 and 2, the purport of the whole pleadings

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

A. The plaintiff's assertion

In 2011, the Plaintiff’s total period of the first semester, including the nursing period, should be deemed to be the contract period as long as the Plaintiff was assigned to work as a class holder in the first semester. Moreover, in 2011, the Plaintiff was unable to receive benefits during the said period even though he faithfully performed his work as a class holder during the summer vacation period. This constitutes a discrimination with the regular teacher in charge of having the same class holder as the Plaintiff, which is unreasonable compared to the regular teacher in charge of having the same class holder as the Plaintiff, and thus, the judgment on the first treatment of the instant judgment rendered on different premise is unlawful.

B. Relevant provisions

It is as shown in the attached Form.

C. Facts of recognition

1) From March 10, 1973 to March 10, 2003, the Plaintiff retired from office as an elementary school teacher, and thereafter, from September 1, 2004, the Plaintiff worked as a fixed-term teacher at various elementary schools located in the city of macroscopic period from September 1, 2004. From March 1, 2009, the Plaintiff entered into a contract with ○○ Elementary School as a semester and worked as a fixed-term teacher (class teacher).

2) From around 2009 to February 28, 201, the Plaintiff entered into a contract during the term of contract. However, in the case of a contract for the year 201 that was entered into in February 201 of the same year, the period between March 1 of the same year and the summer vacation period (from July 20, 201 to August 28, 201) were excluded from the contract period. Meanwhile, the contract entered into by the Plaintiff while serving as a fixed-term teacher in the ○○ Elementary School is as follows.

The term of contract of the attached Table, contained in the main text, includes the period of class attendance from March 1, 2009 to August 31, 2009, including the period of class attendance from September 1, 2009 to February 28, 2010, which includes the period of class attendance from March 1, 2010 to February 20, 2010, 3. The period of class attendance from March 1, 2010 to August 31, 2010, including the period of 20.3 class attendance from August 21, 2010 to August 21, 2010 from September 21, 2010 to August 21, 2010, including the period of 20.3 class attendance from August 1, 2010 to August 21, 201.

3) In 2011, the Plaintiff was responsible for the allocation of cleaning zone, lost goods, the management of flowers and fireproofs, and the outdoor cleaning, etc. as a fence of the business performance table of ○○ ○ ○ ○ ○ ○ ○ 201.

4) Even ○○○ Elementary School’s 201 year from July 20, 2011 to August 28, 201 of the same year. The document pertaining to “student’s guidance during school” distributed to ○○○ Elementary School’s 3rd grade students on the day before the implementation date of the domination includes the Plaintiff’s mobile phone number based on the contact contact number of the students during the emergency contact network.

5) In 2011, the Plaintiff prepared and posted a statement of legitimacy relating to life and learning during the vacations on the bulletin board of the third and third class class of the ○○ Elementary School website during the summer vacation period, and there is also an answer from parents after being asked about parents about the preparation for school subjects and the preparation for school trips.

6) During the summer vacation period of 201, 01, ○○ Elementary School did not operate an educational activity program in addition to the care class and the English camp due to the replacement of the 2-3 corridor of the teacher (school teacher) during the summer vacation period of 201 and the end of the classroom. The Plaintiff did not participate in the educational activity program during the summer vacation period.

7) On August 26, 2011, the Plaintiff entered into a contract on August 26, 201, and the period of the contract (from August 29, 2011 to December 20, 201) was excluded from the period of wintering, but thereafter, entered into a new contract with the period of the contract from December 21, 201 to February 28, 2012. Meanwhile, the Plaintiff still carried out a class position in the third-year class position in the second-year class.

[Reasons for Recognition] Facts without dispute, Gap evidence 1, 2, Gap evidence 3-2, 3, 4, Gap evidence 5-1 to 4, the purport of the whole pleadings

D. Determination

(i) the existence of workers subject to comparison;

Article 8(1) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers provides that “An employer shall not discriminate against a worker who, on the ground of being a fixed-term worker, has entered into an employment contract with no fixed period of time engaged in the same or similar work at the relevant business or workplace.” Here, whether a worker who entered into an employment contract with no fixed period of time engaged in the same or similar work at the relevant business or workplace (hereinafter referred to as “non-regular worker”) constitutes one kind of work or similar to a fixed-term worker’s work shall be determined on the basis of the work actually performed by the worker, not the content of the work prescribed in the employment rules or the employment contract. However, barring special circumstances, barring any inherent difference in the scope of the work performed by the worker or its responsibilities and authority, barring any inherent difference

However, the Plaintiff performed the duties of class attendance at ○○ Elementary School, and Gyeongnam-do’s Contract Teachers’ Management Guidelines 3. A. 8. A. 'Operational Guidelines by Type of Fixed-Term Teachers’) stipulates that fixed-term teachers shall work the same as regular teachers. Therefore, a regular teacher who performs the duties of class attendance at ○○ Elementary School constitutes a worker subject to comparison with the Plaintiff.

(ii) the existence of discriminatory treatment;

Article 2 subparag. 3 of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers defines “discriminatory treatment” as “unfavorable treatment in terms of wages and other working conditions, etc.” The term “unfavorable treatment” refers to the overall disadvantage inflicted on fixed-term workers by treating fixed-term workers differently from their wage, other working conditions, etc. In cases where an employer has no reasonable grounds, the term “unfavorable treatment” refers to cases where the need to treat fixed-term workers differently or where it is deemed unnecessary to treat fixed-term workers differently. Whether reasonable grounds exist should be determined by comprehensively taking into account the details and circumstances of the unfavorable treatment in individual cases, such as the form and scope of employment, authority and responsibility of fixed-term workers, wage and other working conditions, etc. (see Supreme Court Decision 2011Du2132, Mar. 29, 2012).

However, the above facts are revealed in addition to the overall purport of oral argument. ① Unlike regular teachers performing class attendance at ○○ Elementary School, the Plaintiff was treated unfavorably as being unable to receive wages during the school period due to the exclusion of the vacation period from the contract period. ② The Plaintiff was in charge of the class attendance at 2011 as well as the 3rd class attendance at 201 semester, and the Plaintiff appears to have provided guidance services for students and parents as a class attendance during the summer School. ③ The Defendant asserted that the Plaintiff’s 00th and 3th class class class attendance at 201 and 10th class class attendance at 201 and 10th class attendance at 20, and that it is reasonable to view that the Plaintiff’s 10th class and 2nd class attendance at 10th class and 3th class attendance at 10th class, and that there was no special need to provide guidance for safe treatment for students, such as the Plaintiff’s 1st class attendance at 20th class and 2nd class attendance at 10th class.

3. Conclusion

Therefore, the plaintiff's claim is reasonable, and it is so decided as per Disposition.

[Attachment] Relevant Provisions: omitted

Judges Jin Chang-ho (Presiding Judge)