AbC Co., Ltd. (Law Firm AbS, Attorneys Lee Dong-movable et al., Counsel for the defendant-appellant)

The Chairman of the National Labor Relations Commission

Defendant joining the Defendant (Attorney Kim Jong-sung, Counsel for defendant-appellant)

October 19, 2016

Seoul Administrative Court Decision 2015Guhap72269 decided April 29, 2016

1. The Defendant and the Intervenor’s Intervenor’s appeal are dismissed.

2. The supplementary participation costs are borne by the Intervenor, and the remainder is borne by the Defendant.

1. Purport of claim

The decision made by the National Labor Relations Commission on July 23, 2015 between the Plaintiff and the Intervenor joining the Defendant (hereinafter referred to as the “ Intervenor”) is revoked with respect to the case for which the application for retrial against unfair dismissal was filed by the Central Labor Relations Commission.

2. Purport of appeal

The judgment of the first instance is revoked, and the plaintiff's claim is dismissed.

1. Quotation of the first instance judgment

A. The reasoning for the statement in this case is as follows, and the reasoning for the judgment of the court of first instance is the same as that for the judgment of the court of first instance, except for the addition or dismissal of some contents as follows. Thus, it shall be cited as it is in accordance with Article 8(2) of the Administrative Litigation Act

B. The part added or dried;

In addition, the following shall be added to the 13th written judgment of the court of first instance.

The Defendant or the Intervenor asserts to the effect that deeming the period of time from January 1, 2013 to March 31, 2013 as a short-term employment contract relationship by Nonparty 5’s testimony, etc., which is favorable to the Plaintiff despite the high credibility of Nonparty 1’s statements at the trial. The Intervenor’s assertion that the period of time is unreasonable as an implied measure of the Plaintiff’s company seeking to avoid applying the fixed-term employment contract. However, in light of the overall content and purport of Nonparty 5’s statement, it is difficult to view the Intervenor’s assertion that the period of time would normally be inconsistent with other objective surrounding circumstances, and that it would be difficult to reverse the conclusion of the judgment, solely on the basis of Nonparty 1’s statement, etc., that the Intervenor’s assertion that the Plaintiff’s assertion that the period of time would have been terminated, including the reduction of the duration of the contract between the Plaintiff and the Plaintiff’s 2012-2013 contract terms, is unreasonable.

/ At the 13th bottom of the first instance judgment, the following shall be added:

Meanwhile, an employer may employ a fixed-term worker within two years by the enforcement of the Fixed-term Workers Act, and even if a fixed-term worker is deemed an employee without a fixed-term worker period of time, the legislative purport of the aforementioned provisions is basically to ensure the status of the worker by preventing abuse of a fixed-term employment contract, and cannot be deemed to have excluded or restricted the legitimate expectation right for renewal of a fixed-term worker already formed before the enforcement of the fixed-term employment contract (see Supreme Court Decision 201Du12528, Feb. 13, 2014). Furthermore, the establishment of legitimate expectation right for renewal of a fixed-term worker is not restricted pursuant to the above provisions. Further, considering the legal principles as to the contents of Articles 5, 8(1) and 9(1) of the Fixed-term Workers Act and the right to expectation of a fixed-term worker, prior to the expiration of the contract period of employment contract, if the employer is deemed to have no fixed-term worker period of time or without reasonable grounds to convert the employment contract into an employee with no fixed-term of employment contract.

4. From the 14th bottom of the judgment of the court of first instance to the 15th 8th parallels shall be followed as follows:

(3) As seen earlier, there is no provision on the procedures or requirements for the planned conversion of a fixed-term worker into regular or indefinite contract workers in the third and fourth employment contracts, rules of employment, collective agreements, etc., as well as there is no provision on the procedures or requirements for the conversion of a fixed-term worker into regular or indefinite contract workers. Moreover, considering the motive and background leading up to the conclusion of a new employment contract at the request of Nonparty 1, the intervenor who was the representative of the labor-management council upon the termination of the previous employment contract based on the circumstances of difficult company, it is difficult to deem that the Plaintiff’s right to renew the contract is recognized. Furthermore, the first and second months immediately after the termination of the contract period, the contract period was less in the amount of the contract of the Plaintiff company compared to the other period. Since the so-called hand-called hand-called hand-on, in which the intervenor may carry out sandbbling and painting, it is difficult to conclude that the Plaintiff’s right to renew the employment contract does not have any reasonable grounds to the extent that the intervenor actually lacks the payment of an indefinite contract.

2. Conclusion

Since the decision on the retrial of this case is unlawful, the plaintiff's claim seeking its revocation shall be accepted on the grounds of its reasoning. The judgment of the court of first instance is justifiable on the same conclusion. The appeal by the defendant and the intervenor is dismissed on the grounds that it is

Judges Lee Dong-won (Presiding Judge)