2015Nu558 Nullification of dismissal

A

Korea

Gwangju District Court Decision 2014Gahap54221 Decided November 13, 2014

July 23, 2015

August 27, 2015

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

On March 1, 2014, the defendant confirmed that dismissal against the plaintiff on March 1, 2014 is null and void.

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

1. Basic facts

A. On March 1, 2007, the Plaintiff was employed on a one-year basis at the National University, a national university established and operated by the Defendant (class A) and renewed the contract as of March 1 every year from around that time to February 28, 2010, and has been in charge of planning public relations activities at B University. B University held a special committee around February 4, 2010, and recruited human resources through new open competition, in principle, for more than two years during the period of service. The Plaintiff was reappointed on March 1, 2010 only for exceptional reasons under the proviso of Article 4(1) of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers, and the Plaintiff was also reappointed on March 1, 2010 to “the date of appointment of the Plaintiff at B University” during the period from March 21, 2010 to “the date of appointment of the Plaintiff as the public relations official of this case, not by the expiration of the period of appointment of the Plaintiff.”

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 6, Eul evidence Nos. 1 through 7, 10, 11, and the purport of the whole pleadings

2. Whether the dismissal of this case is null and void

A. The plaintiff's assertion

1) The Plaintiff is merely in charge of public relations and planning affairs while working at B University, and there is no fact that he/she concurrently conducted academic affairs or conducted research assistance affairs. Thus, exceptionally, where an employer is allowed to employ a fixed-term worker for more than two years, it does not fall under the proviso of Article 4(1)6 of the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (hereinafter “ Fixed-Term Act”) and Article 3(3)4(a) of the Enforcement Decree of the same Act, and as a fixed-term worker for more than two years at the time of the instant dismissal, the Plaintiff is deemed a worker who entered into an employment contract without a fixed period of time pursuant to Article 4(2) of the Fixed-Term Workers Act.

2) Even if the Plaintiff’s total period of service falls under “the above”, in calculating the total period of service of fixed-term workers, if the period of service falling under the exception to the restriction on the period of service of fixed-term workers overlaps, the above period of service should be aggregated, and in the case of the Plaintiff, it exceeds two years. Thus, the Plaintiff constitutes a worker who entered into an employment contract without a fixed period of time pursuant to

3) In addition, as the labor contract between the Plaintiff and the Defendant was repeatedly renewed every seven years, the Plaintiff had a legitimate expectation that the renewal of the above labor contract will continue to be made, barring special circumstances.

4) Nevertheless, the Defendant dismissed the Plaintiff by simply notifying the termination of the contract term, and thus, the instant dismissal was made in violation of Article 23 of the Labor Standards Act, etc., or violates the above expectation right, and thus is null and void.

B. Relevant statutes

It is as shown in the attached Form.

(c) judgment;

1) The main text of Article 4(1) of the Fixed-term Workers Act provides that "an employer may use a fixed-term worker within the extent not exceeding two years (in cases of repeated renewal of a fixed-term employment contract, etc., the total period of continuous employment shall not exceed two years)" and Article 4(1)6 of the same Act provides that "any case prescribed by Presidential Decree where an employer is allowed to employ a fixed-term worker for more than two years and there are other reasonable grounds corresponding to subparagraphs 1 through 5," and Article 3(3)4 (a) of the Enforcement Decree of the same Act delegated by the employer provides that "a case where an employer is allowed to employ a fixed-term worker for more than two years."

In addition, Article 2(3)3 of the former State Public Officials Act (amended by Act No. 11530, Dec. 11, 2012 and enforced from December 12, 2013) provides that public officials in contractual service who are public officials engaged in work requiring expertise and skills or requiring flexibility in appointment according to employment contract with the State shall be special career public officials. The Plaintiff shall renew the contract from March 1, 2010 to the date of the dismissal of the instant case on one-year basis and appoint them as assistants. However, Article 4(2) of the Fixed-term Act provides that "where an employer uses a fixed-term worker for more than two years without a fixed period of time, such fixed-term worker shall be deemed an employee who entered into an employment contract, and it shall be deemed that the Plaintiff falls under the scope of Article 3(3)4(a) of the Enforcement Decree of the same Act or Article 3(1)4(1)6(1) of the same Act and (3) of the Enforcement Decree of the same Act, and thus, the evidence that the Plaintiff’s provision of Article 4(1) through 6(3) of the same Act shall be construed.

A) Articles 2(1)1, 8, and 26(1) of the Public Educational Officials Act, Article 16 of the Higher Education Act, Article 5 of the Enforcement Decree of the same Act, and Article 2 subparag. 1 of the Regulations on the Criteria for Qualification for University Faculty Members [Attachment] provide that teachers and assistant instructors working for educational institutions shall be public educational officials, and the assistant instructors shall be those who have graduated from a school equal to or higher than the school they intend to work but shall be appointed by the head of the relevant university. Article 15(4) of the Higher Education Act provides that "the assistant instructors shall assist in the affairs concerning education, research, and school affairs." Meanwhile, Article 14 of the Higher Education Act provides that the school shall be divided into professors, associate professors, assistant professors, and instructors, other than the president or dean of the relevant university who is assigned to the school (Paragraph 2). In light of the location and contents of each Article, the assistant instructors shall be distinguished from the school affairs necessary for the operation of the school.

B) Article 3(3)4(b) of the former Enforcement Decree of the Fixed-Term Workers Act (amended by Presidential Decree No. 22018, Feb. 4, 2010) provides for exceptions to the restriction on the use period of fixed-term workers, even in cases of full-time workers, such as concurrent teachers, honorary professors, part-time instructors, and invited teachers under Article 7 of the Enforcement Decree of the Higher Education Act by newly establishing Article 3(3)4(b) of the former Enforcement Decree of the Fixed-term Workers Act (amended by Presidential Decree No. 22018, Feb. 4, 2010). The Act provides for exceptions to the restriction on the use period of fixed-term workers, such as faculty members, honorary professors, part-time lecturers, researchers, etc. who work for universities and colleges, even if the implementation period of university lectures and research tasks exceeds two years, the majority of the fixed-term workers would be converted into full-time workers, and such exceptions are included in the Act for the purpose of protecting employment and the implementation of research tasks and the work period.

C) However, since March 1, 2010, the Plaintiff took the form of employment as a teaching assistant belonging to B University from March 1, 2010, but only took charge of public relations and planning as well as the same before. Furthermore, on January 22, 2010, the president of B University prevents the head of the student support division, etc. employed as a contracting staff member of B University from taking the procedure of retirement against the said contractual staff member whose contract term expires as of February 28, 2010 and from converting him/her into an indefinite contract employee pursuant to Article 4(2) of the Fixed-term Act; however, if it is inevitably necessary for the performance of his/her duties, he/she will be reappointed only when there is an inevitable reason for new appointment or an exceptional reason not falling under the foregoing provision, and considering that the term of employment of the said employee of B University held a special committee around February 4, 2010 and prohibited the appointment of a fixed-term employee of the Plaintiff through an open competitive recruitment, not an exception to the fixed-term employment contract employee.

D) If it is interpreted that the meaning of 'interordination' includes a person who is in charge of only the affairs necessary for the operation of the school, such as public relations and planning, as alleged by the Defendant, such interpretation does not comply with the purport of the Higher Education Act that provides for classifying teaching assistants and employees as well as the purpose of the Higher Education Act that provides for the division of teaching assistants, thereby opening a way to escape fixed-term workers under Article 4 (2) of the same Act, and thus is contrary to the purport of the Fixed-term Act. In fact, the appointment of teaching assistants at B university stipulates that the appointment of teaching assistants shall assist in the affairs of education, research and academic affairs concerning teaching assistants (Article 5). In principle, the appointment of teaching assistants shall belong to the department of teaching assistants (Article 6), but only if the president recognizes it, the teaching assistants shall be assigned to each head office, etc. (Article 6), but only 34 teaching assistants at the graduate school from among 243 teaching assistants belonging to B university.

D. Sub-committee

Ultimately, since the Plaintiff had worked as a fixed-term worker for more than two years from March 1, 2008, whose labor contract was renewed as a result of the enforcement of the Fixed-term Employment Act, the Plaintiff shall be deemed an employee who entered into an employment contract without a fixed period of time under Article 4(2) of the Fixed-term Employment Act at the time of the instant dismissal. Therefore, in order for the Plaintiff to lawfully dismiss the Plaintiff to be considered as having entered into an employment contract without a fixed period of time, there must be justifiable grounds for dismissal, i.e., to the extent that it is impossible to continue the employment relationship under social norms, and as seen above, the instant dismissal on the ground that the Defendant merely was in violation of Article 23(1) of the Labor Standards Act, which is a mandatory provision, and as long as the Defendant is disputing, there is a benefit to seek confirmation of its invalidity.

3. Conclusion

If so, the plaintiff's claim of this case is justified, and the judgment of the court of first instance with the same conclusion is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge Park Byung-il

Judges Park Jae-soo

Judge Park Jong-soo