Nexexexexexte (Attorney Yu Han-soo, Counsel for the plaintiff-appellant)

The Chairman of the National Labor Relations Commission

Defendant joining the Defendant (Attorney Jin-chul et al., Counsel for defendant-appellant)

August 17, 2017

1. On September 26, 2016, the Central Labor Relations Commission revoked the decision of review made in relation to the case of request for unfair dismissal between the Plaintiff and the Defendant joining the Defendant on September 26, 2016.

2. The supplementary part of the costs of lawsuit shall be borne by the Intervenor, and the remainder shall be borne by the Defendant.

The text shall be as shown in the text.

1. Details of the decision on retrial;

A. The Plaintiff is a company that manufactures and sells cosmetics using approximately 20 regular workers.

B. On October 5, 2015, the Intervenor joining the Defendant (hereinafter “ Intervenor”) entered into a probationary employment contract with the Plaintiff (hereinafter “instant employment contract”) and served as a research assistant assisting research affairs.

The probationary period of ○○ Employment Contract included in the main sentence: The probationary period of 1 to 3 months from the beginning date of the probationary contract is not a regular employment contract, but a practical interview that is not a regular employment contract, and if it is deemed appropriate to determine whether a worker is employed as a member during the probationary period, it is necessary to conclude an annual salary contract as a regular employee.

C. On January 13, 2016, the Plaintiff decided not to regularly employ intervenors based on the result of the evaluation of the worker’s service conducted on January 4, 2016, and notified the intervenors of the dismissal on January 14, 2016 (hereinafter “instant dismissal”).

D. On April 6, 2016, the Intervenor asserted that the instant dismissal was unfair, and filed an application for remedy with the Seoul Regional Labor Relations Commission. On June 1, 2016, the Seoul Regional Labor Relations Commission determined that the instant dismissal was unfair and accepted the Intervenor’s application for remedy.

E. Accordingly, the Plaintiff filed an application for reexamination with the National Labor Relations Commission on July 8, 2016, but the National Labor Relations Commission dismissed the application on September 26, 2016 (hereinafter “instant decision on reexamination”).

[Reasons for Recognition] Unsatisfy, entry of Gap evidence 1 to 3, and 6 (including branch numbers in case of additional number), the purport of the whole pleadings

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

A. The plaintiff's assertion

The Plaintiff did not hire the Intervenor on the grounds that the result of the assessment of the Intervenor’s service conducted on January 4, 2016 was low. The Intervenor’s work evaluation result for the Intervenor is reasonable, since the Intervenor’s work experience as a research assistant lacks necessary expertise and ability to perform duties, and the communication with the research team members was not good.

As such, since there exists a reasonable ground for the Plaintiff not employing the Intervenor as a principal agent, the first retrial ruling of this case is unlawful on a different premise.

B. The defendant and the intervenor's assertion

The Plaintiff appears not to have been employed on the basis of the Intervenor’s injury as a result of the Intervenor’s work evaluation. Moreover, it is difficult to deem that the Intervenor was well aware of his/her duties in that the Plaintiff employed the Intervenor as a training worker through a written examination along with the interview, and there is no point of view that the Intervenor did not receive any points or duties due to his/her failure to work during the period in which the Intervenor was on duty, etc., and there is no standard points for this employment in the labor contract and employment rules, etc., and there is no specific opinion on the Intervenor’s work evaluation report, and there is no specific opinion on the part of the Intervenor’s work evaluation report. Therefore, it is difficult to deem that the

Therefore, since it cannot be deemed that there is a reasonable ground that the Plaintiff did not regularly employ the Intervenor, the instant decision on retrial is lawful.

(c) Fact of recognition;

1) The Plaintiff, due to the lack of regular human resources, has made a public announcement of the recruitment of researchers and researchers from time to time through the Internet job-seeking site, such as “human resources,” and carpets (carpets: sharing information about job-seeking activities) opened within the following “the Internet portal site,” and recruited human resources.

2) The Intervenor also provided membership support to the Plaintiff through the public notice of employment, and on October 1, 2015, the Plaintiff conducted a written examination to assess whether the Intervenor had basic knowledge necessary for his/her duties, along with the employment interview.

3) As a result of the written examination, the Intervenor had 6 problems among the 15 issues, and the Nonparty’s employee assessed the Intervenor as follows and given 48 points out of 75 points.

In this paper, the basic knowledge is insufficient due to the lack of ○ biological basic knowledges, which lack of ○○ research assistant personnel, on the top density of ○pm pm pm pm pm p in the main text.

4) After entering into the instant labor contract, the Intervenor performed the Plaintiff’s duty to work as a researcher at the Plaintiff’s central research institute and to compute the concentration and manufacture reagents.

5) On December 10, 2015, the Intervenor re-exploited the lusences that occurred intermittently among the efforts to move the Plaintiff’s workplace.

6) When the Intervenor complained of the certificate of bluriium, the Plaintiff placed the Intervenor as an assembly room, not a laboratory.

7) On January 11, 2016, upon the Intervenor’s request for the application for industrial accident around January 201, Nonparty 2, the vice president of the Plaintiff, demanded the Intervenor to submit a medical certificate on January 11, 2016. On the following day, Nonparty 2 again demanded the submission of a medical certificate issued by the university hospital.

8) On January 4, 2016, the director of the Plaintiff’s central research institute, the vice-director, the director, and the director evaluated the Intervenor’s work performance. They granted 22 points, 27 points, 21 points, and 14 points out of 100, respectively.

9) On January 14, 2016, the intervenor did not work for the treatment of the worker, and on the same day, the plaintiff notified the intervenor that the intervenor decided to refuse this employment because the intervenor was unable to work for the treatment of the worker.

[Reasons for Recognition] Facts without dispute, Gap's statements, Gap's testimony, 6, 7, 9, 11, 12, 16, 17, Eul's evidence Nos. 2, Eul's evidence Nos. 3 through 7 (including numbers), Eul's testimony, and the purport of the whole pleadings

D. Determination

1) Relevant legal principles

In light of the purpose and purpose of the pilot system that intends to observe and determine business eligibility, such as business ability, qualities, figures, sincerity, etc. of the relevant worker, it is deemed that it is more widely accepted rather than ordinary dismissal, and even in this case, it should be recognized that there exists an objective reasonable reason and it is reasonable in terms of social norms (see Supreme Court Decision 2003Da5955, Jul. 22, 2003, etc.).

2) In the instant case:

In full view of the following circumstances revealed in addition to the facts acknowledged earlier and the purport of the entire argument as seen earlier, the judgment on the retrial of this case was unlawful on a different premise, since it appears that there exists a reasonable ground for the Plaintiff to not conclude this contract with the intervenor who entered into the instant labor contract, which is a trial contract.

① Since the Plaintiff’s workplace conducts the business of manufacturing reagents by calculating the concentration, the researcher needs biological basic knowledge, such as calculating the concentration, but the Intervenor seems to lack such biological basic knowledge.

② The Plaintiff, even though the Intervenor received a low evaluation in the written examination and the recruitment interview, was employed by the Intervenor, due to the lack of human resources of the researchers, and the Intervenor expressed his/her intent to acquire his/her duties after his/her membership. However, the Intervenor was unable to obtain his/her job knowledge as much as he/she expects his/her job after his/her membership and did not appear to show the improved situation

③ The Intervenor appears to have caused considerable trouble to the Plaintiff’s research affairs because communication with other employees is insufficient as well as smooth communication with other employees, and the collaboration among research personnel is deemed to have brought about significant difficulties to the Plaintiff’s research affairs. The fact that multiple evaluators had remarkably low the performance evaluation scores for one-time training staff with respect to the Intervenor seems to be the result of reflecting the above points.

④ In notifying the Intervenor of the instant dismissal, the Plaintiff included both the failure of business and probationary assessment as well as the failure of dismissal as one of the causes for dismissal. However, in light of the fact that the notice of dismissal (Evidence No. 6) revealed that the probationary assessment was the main reason for the refusal of this dismissal and attached to the notification of dismissal (Evidence No. 6), the Plaintiff’s refusal of the regular employment of the Intervenor was the result of the probationary assessment, and the fact that the Intervenor maintained the employment relationship by converting and placing it to the assembly department after receiving the boom injury, the Plaintiff appears to have been the main reason for the refusal of the regular employment of the Intervenor. Even if the Plaintiff considered the Intervenor’s health condition as well as the Plaintiff’s work as the researcher, it cannot be said that the employment decision was unfair by taking this into account in that it actually obstructs the continuation of the researcher’s work.

⑤ The Plaintiff was dismissed after the expiration of the probation period under the instant employment contract. However, the Plaintiff conducted a work evaluation of the Intervenor at the time of the expiration of the probation period, and it appears that the Intervenor had not worked smoothly due to the Intervenor’s health condition at the time of the expiration of the probation period. As such, it can be seen that there are circumstances acceptable for the Plaintiff to accept the instant dismissal after the expiration of the probation period. The Plaintiff did not express his intent of refusal of the instant employment contract by the expiration date, solely on the fact that the Plaintiff did not express his intent of refusal of the instant employment contract by the expiration date, it cannot be deemed that the right of cancellation, which was reserved, was extinguished or not exercised.

3. Conclusion

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

Judges Park Jong-soo (Presiding Judge)