[Plaintiff, Appellant] Plaintiff (Attorney Lee Hak-jun, Counsel for the Plaintiff)
[Defendant, Appellee] Jeju Special Self-Governing Province Seogwipo Medical Center (Law Firm (LLC) Min, Attorney Kim Seon-woo, Counsel for the Defendant)
[Judgment Below] Jeju District Court Decision 2020Na12622 decided February 2, 2021
[Order]
The judgment below is reversed, and the case is remanded to the Jeju District Court.
[Reasoning]
The grounds of appeal are examined.
1. The court below determined that the Plaintiff's date of hire was January 1, 2000, the date on which the Plaintiff was hired as a temporary employee, on the grounds that, taken together: the period during which the Plaintiff worked as a probationary employee of the Defendant appears to correspond not to a confirmed hiring but rather to a kind of practical aptitude test constituting part of the process for hiring temporary employees; the money paid to the Plaintiff during the probationary period was calculated in a manner different from the Defendant's compensation regulations and was paid on a date different from the Defendant's regular pay date; and the working conditions and form of employment of the Defendant's probationary employees appear to differ from those of ordinary employees; and, in light of these circumstances, it is difficult to recognize continuity of the employment relationship between the Plaintiff's service during the probationary period and the Plaintiff's subsequent service as a temporary employee.
2. However, the above determination by the court below is difficult to accept for the following reasons.
A. A trial employment (試用) refers to the hiring of an employee on a trial basis for a certain period, prior to the conclusion of the regular employment contract, in order to observe, assess, and evaluate the employee's vocational ability, aptitude, character, sincerity, and other qualifications for the job. Just as in the case where the form of work provided, such as job type, changes during the period of continuous service, in the case where a regular employment contract is concluded upon the expiration of the trial employment period and the employee continues to work without any gap in service, the period combining the trial employment period and the regular employment contract period should be regarded as the continuous service period that forms the basis for calculating retirement allowance (see, e.g., Supreme Court en banc Decision 93Da26168 decided July 11, 1995).
B. According to the reasoning of the judgment below and the record, it can be seen that the Plaintiff passed the Defendant's probationary employee hiring examination and worked for one month from December 1, 1999, as a probationary employee in the Defendant's Medical Affairs Department, performing tasks such as clerical assistance; that on December 30, 1999, the Plaintiff was paid 338,000 won by the Defendant in the name of wages; and that thereafter, following deliberation by the Defendant's personnel committee, the Plaintiff was hired as a temporary employee of the Defendant effective January 1, 2000.
C. Examining these facts in light of the legal principles set forth above, the period during which the Plaintiff worked as a probationary employee of the Defendant appears to have been not merely a practical aptitude test, but rather a trial employment period during which actual labor was provided. Therefore, insofar as the Plaintiff continued to work as an employee of the Defendant even after the expiration of the probationary period, it is reasonable to view that the Plaintiff's period of service as a probationary employee is also included in the continuous service period forming the basis for calculating retirement allowance.
D. Nevertheless, the court below, for the reasons stated in its judgment alone, did not accept the Plaintiff's argument that the Plaintiff's date of hire should be regarded as December 1, 1999, the start date of the Plaintiff's service as a probationary employee. This determination by the court below contains an error that misapprehends the legal principles concerning the continuous service period used in calculating retirement allowance, thereby affecting the judgment.
3. Therefore, without further examining the remaining grounds of appeal, the judgment below is reversed, and the case is remanded to the court below for further hearing and determination. This judgment is rendered by the unanimous opinion of the participating Justices as set forth in the Order.
Justice Oh Kyung-mi (Presiding Justice), Park Jung-hwa, Kim Seon-su (Justice in Charge), Noh Tae-ak