[Plaintiff, Appellant] Plaintiff (Attorney Kim Dong-hyun, Counsel for the Plaintiff)
[Defendant, Appellee] Defendant (Attorney Lee Young-su, Counsel for the Defendant)
[Judgment Below] Seoul Southern District Court Judgment 2020Na55723, decided August 19, 2021
[Order]
The part of the judgment below concerning the claim for the difference from the minimum wage is reversed, and this part of the case is remanded to the Seoul Southern District Court. The remainder of the appeal is dismissed.
[Reasoning] The grounds of appeal are examined.
1. Outline of the Case
A. On February 5, 2016, the Plaintiff entered into an employment contract with the Defendant and worked at the hotel operated by the Defendant (hereinafter "the instant hotel") until May 20, 2018.
B. The Defendant paid the Plaintiff, under the name of monthly basic salary, KRW 1,750,000 from March 2016 to August of the same year, KRW 1,830,000 from September 2016 to December 2016, KRW 1,952,440 from January 2017 to December of the same year, and KRW 2,200,000 from January 2018 to May 2018 (hereinafter "the instant wages").
C. The Plaintiff asserted that the Defendant had failed to pay the overtime allowance, night-work allowance, and weekly holiday allowance (hereinafter "the agreed allowances") that the Defendant had agreed to pay under the employment contract, and claimed against the Defendant payment of KRW 15,687,473 in agreed allowances plus damages for delay thereon. However, the court of first instance rendered a judgment dismissing the Plaintiff's claim on the ground that the agreed allowances stipulated in the employment contract were all included in the instant wages paid by the Defendant to the Plaintiff.
D. The Plaintiff, dissatisfied with the judgment of the first instance, appealed, and at the fourth date for pleadings in the court below, stated a brief dated March 9, 2021, asserting that if the agreed allowances were included in the instant wages, then the instant wages fell short of the minimum wage prescribed by the Minimum Wage Act (최저임금법), and seeking "payment of KRW 14,927,020, the difference between the minimum wage prescribed by the Minimum Wage Act and the wages received by the Plaintiff (hereinafter 'the difference from the minimum wage'), within the scope of the existing claim."
E. The court below, deeming that the Plaintiff had added the claim for the difference from the minimum wage as a selective (alternative) claim, accepted the application to amend the cause of action, and in the reasoning of its judgment stated that both the original claim for the agreed allowances and the claim for the difference from the minimum wage added at the appellate stage were without merit; however, in the order (judgment text), it merely stated that the Plaintiff's appeal was dismissed.
2. Determination on the Claim for the Agreed Allowances (Grounds of Appeal Nos. 1 and 3)
The court below determined, for the reasons stated in its judgment, that on the premise that a valid comprehensive wage agreement (포괄임금약정) had been validly concluded between the Plaintiff and the Defendant, the Defendant had paid all of the agreed allowances stipulated in the employment contract by paying the instant wages to the Plaintiff.
Upon examination in light of the relevant legal principles and the record, the above determination of the court below is justifiable and may be upheld, and there is no error therein that violates the rules of logic and experience so as to exceed the bounds of the principle of free evaluation of evidence, or that misapprehends the legal principles concerning comprehensive wage agreements, thereby affecting the conclusion of the judgment.
3. Determination on the Claim for the Difference from the Minimum Wage (Ground of Appeal No. 2)
A. Article 6(1) of the former Minimum Wage Act (before amendment by Act No. 15666 on June 12, 2018) provides that "an employer shall pay to a worker subject to the minimum wage an amount of wages not less than the minimum wage amount." Paragraph (4) of the same Article provides that wages falling under the following are not included in the wages referred to in paragraph (1): "wages other than those paid regularly at least once a month, as determined by the Minister of Employment and Labor (item 1)"; "wages other than those paid for the prescribed working hours or prescribed working days under Article 2(1)7 of the Labor Standards Act (근로기준법), as determined by the Minister of Employment and Labor (item 2)"; and "other wages that the Minister of Employment and Labor separately determines as inappropriate to include in the minimum wage amount (item 3)." Furthermore, the former Enforcement Rule of the Minimum Wage Act (최저임금법 시행규칙) (before amendment by Ordinance of the Ministry of Employment and Labor No. 240 on December 31, 2018), in [Attached Table 1] of Article 2, sets forth the scope of wages not included in the minimum wage (hereinafter "wages excluded from minimum wage calculation"). Accordingly, whether the wages paid fall short of the minimum wage must be determined by comparing the minimum wage amount with the wage amount obtained by excluding the "wages excluded from minimum wage calculation" from the wages paid (i.e., the wages for purposes of applying the minimum wage, hereinafter "the wages subject to comparison") (see Supreme Court Judgment 2014Do12265, decided December 24, 2014; Supreme Court Judgment 2014Da44673, decided June 19, 2018, etc.).
B. As found by the court below, if the instant wages received by the Plaintiff as a comprehensive wage include wages excluded from minimum wage calculation, such as overtime allowance and night-work allowance, then, in accordance with the legal principles set forth above, whether the wages paid by the Defendant to the Plaintiff fall short of the minimum wage must be determined by comparing the minimum wage amount with the wages subject to comparison, calculated on the basis of the amount obtained by excluding the wages excluded from minimum wage calculation from the instant wages received by the Plaintiff.
Nevertheless, the court below determined whether the wages paid by the Defendant fell short of the minimum wage based on the amount of the instant wages paid by the Defendant to the Plaintiff. This determination by the court below contains an error of misapprehending the legal principles concerning the method of calculating the wages subject to comparison, thereby affecting the conclusion of the judgment. The ground of appeal pointing this out is well-founded.
4. Scope of Reversal
In light of the facts found above and the legal principles set forth above, the original claim for the agreed allowances and the claim for the difference from the minimum wage added in the court below are claims that are logically incompatible with each other, and are, by their nature, in a relationship of conjunctive (preliminary) joinder. Therefore, although the court below omitted, in its order, a determination on the claim for the difference from the minimum wage, which was added as a conjunctive claim in the court below, since the Plaintiff appealed against the judgment of the court below, the part concerning the claim for the difference from the minimum wage was also transferred to this court on appeal.
As noted above, the Plaintiff's ground of appeal concerning the claim for the agreed allowances is without merit, while the Plaintiff's ground of appeal concerning the claim for the difference from the minimum wage is well-founded. Accordingly, only the part concerning the claim for the difference from the minimum wage, which is the conjunctive claim for which the appeal is well-founded, must be reversed.
5. Conclusion
Therefore, as to the part of the judgment below concerning the claim for the difference from the minimum wage, this part is reversed without examining the remaining grounds of appeal, and this part of the case is remanded to the court below for further hearing and determination; the remainder of the appeal is dismissed. This judgment is rendered as stated in the Order, with the unanimous consent of the participating Justices.
Justice Lee Heung-gu (Presiding Justice), Ahn Cheol-sang (Justice in Charge), Noh Jeong-hee, Oh Seok-jun