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(영문) 서울행정법원 2015.09.24 2015구합3980
부당해고구제재심판정취소
Text

1. The plaintiff's claim is dismissed.

2. The costs of the lawsuit, including the part resulting from the supplementary participation, are all assessed against the Plaintiff.

Reasons

1. Details of the decision on retrial;

A. The Intervenor was established on April 1, 2008 as a company engaging in the development and distribution of software.

On March 31, 2011, the Plaintiff was registered as an internal director of the Intervenor.

B. On May 23, 2014, an intervenor convened a provisional shareholders’ meeting and resolved to dismiss the Plaintiff.

C. On November 14, 2014, the Gyeonggi Regional Labor Relations Commission rejected the Plaintiff’s application for remedy on the ground that the Plaintiff is not a worker under the Labor Standards Act and is not a party.

On December 23, 2014, the Plaintiff appealed to the above initial inquiry tribunal and applied for reexamination to the National Labor Relations Commission. On February 11, 2015, the National Labor Relations Commission dismissed the Plaintiff’s application for reexamination on the same grounds as the above initial inquiry tribunal.

(hereinafter referred to as “instant decision by reexamination”). [Ground of recognition] A without dispute, each entry of evidence Nos. 17, 18, and 21, and the purport of the entire pleadings

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

A. The Plaintiff’s assertion 1) The Plaintiff is registered as an internal director on the corporate register, but worked for the Intervenor upon receiving a fixed wage under the direction and supervision from the Intervenor, and thus constitutes an employee under the Labor Standards Act. 2) The Plaintiff’s last attendance at the Intervenor company on April 1, 2014 should be deemed to be the date on which the cause for application of the Labor Standards Act occurred under Article 7-2(1) of the Enforcement Decree of the Labor Standards Act, and the employees employed by the Intervenor during one month prior to the said date (from March 1, 2014 to March 31, 2014), including the Plaintiff, C, D, E, F, G, H, Vietnam, and 2-3, and 9-10 full-time employees employed by the Intervenor, and thus the Intervenor constitutes a workplace that employs not less than 5 workers.

3 The dismissal of the plaintiff by the intervenor is a dismissal under Article 23 of the Labor Standards Act, and the above dismissal does not have any justifiable reason and the ground for dismissal by the intervenor to the plaintiff pursuant to Article 27(1)

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