2011Guhap9119 Demanding cancellation of the imposition of charges for compelling compliance

Tae forest Housing Management Corporation

Seoul Regional Labor Relations Commission

June 28, 2011

July 14, 2011

1. The plaintiff's claim is dismissed.

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

The Defendant’s disposition of imposing enforcement fines of KRW 2.5 million against the Plaintiff on January 14, 2011 is revoked.

1. Details of the disposition;

A. The plaintiff's status

The plaintiff is a company that employs 1,00 full-time workers and engages in multi-family housing management business, etc., and A is a person who was employed by the plaintiff company on July 20, 2009.

(b) Application for remedy;

(1) On September 3, 2010, the Plaintiff Company issued an order of unpaid leave of absence to A.

(2) On September 13, 2010, when the above unpaid leave order is unfair, A made an unfair request for remedy to the Defendant (Seoul 2010: 1820, hereinafter referred to as “the unfair request for remedy”), and the Defendant recognized that the above unpaid leave order was unreasonable on November 5, 2010, and the Plaintiff Company issued a remedy order stating that “I shall return to the former position and pay the amount equivalent to the wages that could have been paid if I had worked normally during the period of the above unpaid leave” (hereinafter referred to as “the order for remedy in this case”). On November 16, 2010, Plaintiff Company received the above order for remedy on November 26, 2010, the Plaintiff Company opposed to the order for remedy in this case and filed a request for reexamination with the National Labor Relations Commission (Central 103, 2013 parts).

(c) Imposition of enforcement fines;

On January 14, 2011, the Defendant rendered a decision to impose enforcement fines of KRW 2.5 million on the Plaintiff Company pursuant to Article 33 of the Labor Standards Act (Seoul 2011 compulsory disposition hereinafter referred to as “instant disposition”) on the ground that the Plaintiff failed to comply with the instant order until December 16, 2010, which was the due date for issuing the instant order (hereinafter referred to as “instant disposition”).

【Ground of recognition】 The facts that there is no dispute over the grounds for recognition; Gap evidence 1-2, 3; Gap evidence 2-5; Eul evidence 1-8; the purport of the whole pleadings

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

(1) On January 14, 201, after the instant remedy order, A filed an application for remedy against unfair dismissal with the Defendant separate from the application for remedy against unfair dismissal (Seoul 201da96). In the instant remedy application, the Plaintiff and A acknowledged that the employment relationship between the Plaintiff and A had been terminated by the Plaintiff’s recommendation office on March 9, 201, and the Plaintiff was established. The instant remedy application case for unfair dismissal, and the Plaintiff paid 8.5 million won to A by March 20, 201, the amount equivalent to the wages to be paid due to the above remedy case, and the amount equivalent to the wages to be paid due to the above remedy for unfair dismissal, and the amount equivalent to the retirement allowances due to the recommendation company’s termination of the employment relationship, including the retirement allowances, was established until March 20, 2011. Accordingly, the instant remedy order was unlawful.

(2) The above reconciliation is identical to the final and conclusive judgment under Article 15(1) of the Enforcement Decree of the Labor Standards Act, and the instant remedy order is deemed to have been revoked under the said provision, and thus, the instant disposition is unlawful.

(b) Related statutes;

Article 31 of the Labor Standards Act (Confirmation of Order for Remedy, etc.)

(1) An employer or worker who is dissatisfied with an order for remedy or a decision of rejection made by a local Labor Relations Commission under the Labor Relations Commission Act may apply for reexamination to the National Labor Relations Commission within ten days from the date he/she has received a written notice of such order or decision.

(2) With respect to any decision made by the Central Labor Relations Commission on review under paragraph (1), the employer or worker may institute a lawsuit pursuant to the Administrative Litigation Act within 15 days from the date when he/she is served with the written decision made by review.

(3) Where no application for reexamination is filed or an administrative litigation is filed within the period referred to in paragraphs (1) and (2), the order for remedy, dismissal decision, or retrial decision shall become final and conclusive. The order for remedy, dismissal decision, or retrial decision by the Labor Relations Commission under Article 32 shall not be suspended by the application for reexamination or the institution of administrative litigation against the Central Eastern Committee under Article 31.

Article 33 (Compulsory Performance Money)

(1) The Labor Relations Commission shall, after receiving the order for remedy (including the decision on review the contents of which are the previous order; hereafter the same shall apply in this Article), impose a charge for compelling the performance not exceeding 20 million won on the employer who has failed to comply with the order by the deadline for execution.

(4) The amount of a non-performance penalty imposed and collected pursuant to paragraph (1) depending on the type and degree of violation, procedures for returning the non-performance penalty imposed and collected, and other necessary matters shall be prescribed

(5) A Labor Relations Commission may repeatedly impose and collect a charge for compelling the performance under paragraph (1) two times a year from the date it issues the first order for remedy until the order for remedy is complied with. In such cases, the charge for compelling the performance shall not be imposed and collected in excess of two years.

(6) The Labor Relations Commission shall not impose a new charge for compelling compliance if the order for remedy is complied with, but shall collect the charge for compelling compliance already imposed before the order for remedy is complied with.

Article 15 (1) of the Enforcement Decree of the Labor Standards Act (Refund of Charges for Compelling Compliance)

(1) Where an order for remedy issued by a Labor Relations Commission is cancelled according to a retrial decision of the National Labor Relations Commission or final judgment of a court, a Labor Relations Commission shall immediately suspend the imposition and collection of charges for compelling compliance and refund the charges already collected

C. Determination

(1) Article 32 of the Labor Standards Act provides that "the effect of the remedy order issued by a Regional Labor Relations Commission shall not be suspended by an application for reexamination or an administrative litigation," and Article 33 (1) of the same Act provides that "the Regional Labor Relations Commission shall impose a charge for compelling the performance on an employer who fails to comply with the order by the deadline for the implementation of the order after receiving the order for remedy." Thus, in this case where no evidence exists to deem that the validity of the order for remedy of this case was suspended, as seen earlier, unless it is obvious that the Plaintiff failed to comply with the order by the deadline for the implementation of the order

This agreement was reached between the Plaintiff and A on the application for remedy of unfair dismissal and the case for remedy of unfair dismissal after the deadline for issuing the remedy order, and even if the Plaintiff paid the amount set forth in the above agreement to A and complied with the remedy order, it cannot be deemed that the disposition imposing enforcement fines already made before the implementation thereof is unlawful.

Therefore, the plaintiff's above A. (1) argument is without merit.

(2) Even if the Plaintiff and A were to make a settlement as above in the case of an application for remedy against unfair dismissal (Seoul 201 Section 96), it cannot be said that the order of remedy in this case was cancelled. Thus, the Plaintiff’s assertion that the above protocol of remedy is a final and conclusive judgment under Article 15(1) of the Enforcement Decree of the Labor Standards Act is without merit.

3. Conclusion

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

Presiding Judge, Judge

Judges Kim Jae-hwan

Judges Lee Dong-won