2017Du52153 Revocation of the Appeal Tribunal on Unfair Dismissal

Gwangju Metropolitan City

Attorney Seo-gu et al., Counsel for the defendant-appellant

The Chairman of the National Labor Relations Commission

Defendant 1 and one other

Attorney Park Jong-sung, Counsel for the plaintiff-appellant

Daejeon High Court Decision 2016Nu13470 Decided June 22, 2017

August 20, 2020

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined.

1. Case history

A. The Intervenor 1 (hereinafter referred to as the “ Intervenor”) entered into an ○○ Elementary School, and the Intervenor 2 entered into an annual employment contract from March 1, 2010 to February 28, 2014 at △△ Elementary School, and served as a professional English instructor pursuant to the Elementary and Secondary Education Act and subordinate statutes. However, on February 3, 2014, the ○○ Elementary School Head notified the Intervenor 1, and on February 28, 2014, the △△ Elementary School Head notified the Intervenor 2 of the fact that his employment relationship is terminated on February 28, 2014, and the △△ Elementary School Head was settled and paid retirement allowances according to the termination of the contract period. The Plaintiff continued to engage in the procedure for open recruitment of a specialized English instructor for each school in 2014 (hereinafter referred to as the “instant disclosure procedure”), and the Intervenor’s employment contract from 2015 to 2014 to 2014, respectively.

D. Since then, the head of the ○○ Elementary School and the head of the △△ Elementary School notify the intervenors of the termination of their fixed-term employment contract as of February 28, 2015 (hereinafter referred to as “the notice of expiration of the instant contract”).

E. The Intervenor asserted that the notice of the expiration of the term of validity of the instant case constitutes unfair dismissal, and filed a request for unfair dismissal with the Regional Labor Relations Commission to the Plaintiff as the respondent, and the Central Labor Relations Commission made a decision citing the request for remedy on the ground that the Intervenor ought to be deemed an employee who entered into an employment contract without a fixed period of time in accordance with Article 4(2) of the Fixed-term Labor Relations Commission Act (hereinafter referred to as the “instant decision for reexamination”).

F. The Plaintiff filed the instant lawsuit seeking the revocation of the instant decision on reexamination.

2. Determination as to the allegation in the grounds of appeal on whether the intervenor is deemed an employee who entered into an employment contract without a fixed period of time

A. (1) The main text of Article 4(1) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (hereinafter “Fixed-Term Act”) provides that an employer may employ a fixed-term worker for a period not exceeding two years (in cases of repeated renewal of a fixed-term employment contract, the total period of continuous employment shall not exceed two years). Article 3(3)1 of the Enforcement Decree of the Fixed-Term and Part-Time Workers Act provides that a fixed-term worker may be employed for more than two years if any other statute provides that a fixed-term worker may be employed for a fixed-term worker, unlike Article 4(1) of the Fixed-term and Part-Time Workers Act, or for a fixed-term worker to enter into an employment contract within a separate period of time. Article 22 of the Elementary and Secondary Education Act provides that an employer may have industrial-educational teachers, honorary teachers, instructors, etc., other than teachers, to be in charge of educating students (Article 4(1) of the Enforcement Decree of the Elementary and Secondary Education Act), and that an industrial-educational teacher may be employed for up to one year.

Meanwhile, Article 4 (2) of the Fixed-term Workers Act provides that if an employer employs a fixed-term worker for more than two years despite the absence or extinguishment of the grounds under the proviso of paragraph (1), the fixed-term worker shall be deemed an employee who has entered into an employment contract

In full view of the contents, structure, etc. of these provisions, an employer may use an English language instructor, who is a fixed-term worker, appointed pursuant to the Elementary and Secondary Education Act and subordinate statutes, for more than two years. However, an English language instructor whose total period of continuous work exceeds four years due to repeated or renewed labor contract shall be regarded as an employee who has entered into an employment contract without a fixed period of time.

2) Furthermore, considering the content of the aforementioned provision and the legislative intent of preventing abuse of a fixed-term employment contract as seen earlier, in cases where a fixed-term employment contract is repeatedly concluded or renewed and a fixed-term worker continues to work without a certain gap, the total period from the first fixed-term employment contract to the last fixed-term employment contract shall be included in the "total period of continuous work" as stipulated in Article 4 of the Fixed-term Employment Act, barring special circumstances. However, considering the nature of the work subject to a fixed-term employment contract, the intentions of the parties related to the repetition or renewal of a fixed-term employment contract, the similarity of the work contents and place of a fixed-term worker before and after a fixed-term employment contract, and the procedure or circumstances taken place in the course of the termination and repetition or renewal of a fixed-term employment contract, if there are special circumstances, it shall be deemed that the employment relationship has been severed at the time of the existing fixed-term employment contract, notwithstanding the continued employment of a fixed-term worker, and as a result, the total period before and after the fixed-term employment contract cannot be calculated.

B. According to the above facts and records, the following circumstances are revealed.

1) The intervenors, who have renewed a fixed-term employment contract on a one-year basis, have been employed as a new English language professional instructor from March 1, 2014 through a separate disclosure employment procedure after completing the existing fixed-term employment contract after four years of service period prescribed in the Enforcement Decree of the Elementary and Secondary Education Act.

2) The public recruitment procedure of this case was a method of selecting two successful examinees through the first document screening, based on the existence of qualification certificates, educational experience, etc., and the first document screening was a method of selecting the final successful examinees through the second examination of the preparation of teaching and learning curricula and the subsequent English performance and English-in-depth interview. 12 of the intervenors applied for the public recruitment procedure of this case at an elementary school and 000 elementary schools and i.e., i., e., e., the first document screening and the second document screening. The intervenors were selected as the final successful examinees after the first document screening and the second document screening. Six of the last 43 professional English lecturers selected in the public recruitment procedure of this case conducted by the Plaintiff including the above two schools were new applicants, not the existing professional English language instructors whose term of a fixed-term employment contract expires. As such, the public disclosure recruitment procedure of this case applied by the intervenors can be evaluated as a new recruitment procedure that has been conducted in accordance with objective and reasonable standards.

3) Meanwhile, in comparison with the previous one in relation to the examination of the first document in the open recruitment procedure of this case, the Plaintiff changed the qualification of a teacher and educational experience on the basis of the main evaluation criteria. However, considering various circumstances, such as the contents of the changed criteria, the content of the new recruitment criteria set by the Office of Education other than the time, the qualification criteria of a professional English instructor required by the Decree of the Elementary and Secondary Education, the importance of education experience based on the characteristics of the professional English instructor’s duties, and other circumstances, it is difficult to deem that the Plaintiff changed the criteria with the intent to continue to employ an existing professional English instructor.

4) At the time of the public recruitment process of the instant case, some of the existing English language lecturers were to apply for schools other than the schools in which they had worked as part of a fixed-term employment contract. Notwithstanding the public recruitment procedure of the instant case, the previous English language lecturers, including the intervenors, do not seem to have been aware or expressed that the previous fixed-term employment contract was repeated or renewed.

5) Taking account of the aforementioned circumstances, the termination procedure of the previous fixed-term employment contract that was concluded against the intervenors before and after March 1, 2014 and the purpose of avoiding the application of Article 4(2) of the Fixed-term Employment Act is nothing more than the formal procedure. Examining such circumstances in light of the legal principles as seen earlier, it can be evaluated that the new fixed-term employment contract was concluded on March 1, 2014, and a new employment relationship was formed between the intervenors and the Plaintiff, rather than simple repetition or renewal of the existing fixed-term employment contract. Ultimately, when calculating the total period of continuous employment as stipulated in Article 4 of the Fixed-term Employment Act, the lower court erred by misapprehending the legal doctrine on the employment contract between the intervenors and the Plaintiff, which affected the conclusion of the judgment on the grounds that it cannot be added to the total period of continuous employment contract that was concluded before and after March 1, 2014, and thus, it cannot be deemed that the allegation contained in the grounds for final appeal No. 2000, supra did not necessarily have any error in the conclusion.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-soo

Justices Kim Jong-il

Chief Justice Lee Dong-won

Justices Park Il-san