[Plaintiff (Selected Party), Appellant] Plaintiff (Selected Party) (Attorney: Law Firm Haemaru, Attorney in charge Jang Hong-rok)
[Defendant, Appellee] Yeongsin Educational Foundation (Attorney: Law Firm Idam, Attorney in charge Cho Seong-min)
[Judgment Below] Gwangju District Court Decision 2018Na51897 decided February 15, 2019
[Order]
The judgment below is reversed, and the case is remanded to the Gwangju District Court.
[Reasoning] The grounds of appeal (including the supplementary brief on grounds of appeal submitted after the deadline for submission of the grounds of appeal brief, to the extent it supplements the original brief) are examined.
1. Outline of the Case
According to the reasoning of the judgment below and the record, the following facts can be known.
A. The Defendant is a school foundation that establishes and operates ○○ University (renamed “△△ University” around June 2012), among other institutions, under its umbrella.
B. Plaintiff (Selected Party) Plaintiff (Selected Party) was newly appointed as a full-time instructor at ○○ University on March 1, 2002, and was promoted and appointed as an assistant professor in the □□ Department on April 1, 2005. Selected Party Non-party was newly appointed as a full-time instructor at ○○ University on March 1, 1994, reappointed as an assistant professor on April 1, 2000, promoted and appointed as an associate professor on October 1, 2003, and reappointed as an associate professor in the ◇◇ Engineering Department on March 1, 2010 and March 1, 2011.
C. With respect to the salary system for faculty members, the Defendant maintained a seniority-based pay-grade system, under which remuneration consisting of salary according to seniority-based pay grade plus various allowances was paid, until the 1998 academic year. On March 1, 1999, the Defendant enacted annual salary payment regulations providing that remuneration would be paid based on an annual salary reflecting the previous year’s performance of the faculty member, and implemented this system starting from the 2000 academic year.
D. Plaintiff (Selected Party) and Selected Party Non-party filed a lawsuit asserting that the implementation of the above annual salary system was invalid, claiming the difference between the wages calculated based on the salary table according to pay grade for the 2007 and 2008 academic years and the wages under the annual salary system. Regarding this, the court rendered the following judgment (Supreme Court Decision 2010Da17468 decided June 28, 2012; hereinafter “the First Preceding Judgment”).
The Defendant unilaterally introduced the annual salary system as a disadvantageous rule of employment without obtaining the consent of the faculty members concerned, and therefore this is invalid as being contrary to Article 94(1) of the Labor Standards Act (근로기준법). In the case of Plaintiff (Selected Party), since he was newly appointed after the introduction of the annual salary system and consented to the annual salary system and entered into an annual salary contract with the Defendant, the annual salary system applies to him. However, since in the 2007 and 2008 academic years Plaintiff (Selected Party) was unable to obtain opportunities to participate in admissions promotion activities, etc., due to his activities in the Professors’ Council, including filing accusations against the Defendant’s board members for misappropriation, breach of trust, and other wrongful acts, calculating his annual salary according to the 2007 and 2008 academic year performance evaluation standards would be unjust and constitute an abuse of rights; therefore, Plaintiff (Selected Party)’s wages should be set according to the standard salary by pay grade based on the salary amount set in the 2006 academic year. As for Selected Party Non-party, he was reappointed as an assistant professor on April 1, 2000, promoted and appointed as an associate professor on October 1, 2003, and reappointed as an associate professor on March 1, 2010; in light of various circumstances, it is difficult to view that Selected Party Non-party, like a newly appointed faculty member, accepted the working conditions under the changed rules of employment and newly entered into an employment relationship.
E. For the same reasons as above, Plaintiff (Selected Party) and Selected Party Non-party filed two additional lawsuits claiming the difference between wages calculated based on the salary table according to pay grade and wages under the annual salary system for the academic years 2009 through 2013, and the court ruled to the same effect as the First Preceding Judgment, upholding the claims of Plaintiff (Selected Party) and Selected Party Non-party (Supreme Court Order 2015Da51418 dated December 24, 2015, regarding the 2009 and 2010 academic years, and Supreme Court Order 2017Da229383 dated September 7, 2017, regarding the 2011–2013 academic years; hereinafter “the Second and Third Preceding Judgments”).
F. The Defendant imposed a reprimand on Plaintiff (Selected Party) and Selected Party Non-party on May 21, 2014, and a suspension from duty on October 20, 2014; however, a judgment confirming that both disciplinary actions were void, on the ground that the grounds for disciplinary action did not exist, was rendered and became final (Supreme Court Order 2016Da232887 dated October 13, 2016).
G. Plaintiff (Selected Party) and Selected Party Non-party filed the instant lawsuit claiming the difference between wages calculated based on the salary table according to pay grade for the 2014 and 2015 academic years and wages under the annual salary system.
2. Determination on the Grounds of Appeal of Plaintiff (Selected Party)
A. Judgment of the Court Below
The court below determined, for the following reasons, that with respect to the wages for the 2014 and 2015 academic years, it was insufficient to find that Plaintiff (Selected Party)’s faculty performance evaluation score was unfairly assessed as low due to unlawful causes attributable to the Defendant to such a degree that the faculty performance evaluation standards could not be applied to Plaintiff (Selected Party), and thus determined that Plaintiff (Selected Party)’s claim was without merit.
(1) The weight of the admissions promotion item in the faculty performance evaluation standards is not as high as before. In particular, if limited only to the score directly related to Plaintiff (Selected Party)’s individual contribution, excluding the score for the number of new student enrollments among the admissions promotion items, the weight becomes even lower.
(2) The reason Plaintiff (Selected Party) did not receive a score for contribution to admissions promotion under the 2014 academic year faculty performance evaluation standards was that Plaintiff (Selected Party) did not serve as an admissions promotion committee member in the preceding year, the 2013 academic year. It does not appear that Plaintiff (Selected Party) was unable to serve as an admissions promotion committee member during the above period due to causes attributable to the Defendant. Plaintiff (Selected Party) served as an admissions promotion committee member in the 2014 academic year and was accordingly given a score for contribution to admissions promotion under the 2015 academic year faculty performance evaluation standards.
(3) The faculty performance evaluation results reviewed and deliberated by the Faculty Performance Evaluation Committee are individually notified, after which objections are accepted, and the results are finally determined; however, Plaintiff (Selected Party) did not raise an objection to the above scores.
B. Judgment of the Supreme Court
The judgment below cannot be accepted, for the following reasons.
(1) According to the record, the following circumstances can be known.
(A) The annual salary determined under the annual salary system consists of the base salary, which is “the annual amount of basic salary paid reflecting the relevant position, rank, and the individual’s cumulative performance,” and the performance allowance, which is “the annual amount of salary paid reflecting the evaluation results of the previous year’s work performance.” The base salary is determined by the president as of the first day of each fiscal year, taking into account the previous year’s base salary, the current year’s performance allowance, the rate of change in the base salary cap, the policy adjustment rate, and other factors (Article 12(1) of the △△ University Salary Regulations).
(B) The Defendant’s documents relating to the determination of faculty and staff annual salaries for the 2014 academic year state that the base salary of faculty members rated in the lowest evaluation grade for two consecutive years is to be reduced by 10%. In light of this, the base salary reflects an individual’s cumulative performance, and it is difficult to view that such cumulative performance is limited to the previous year’s performance alone. However, since it was finally determined in the First, Second, and Third Preceding Judgments that it was unlawful to calculate Plaintiff (Selected Party)’s salary according to the Defendant’s performance evaluation for the period from the 2007 academic year to the 2013 academic year, it is difficult to calculate Plaintiff (Selected Party)’s proper base salary and performance allowance under the annual salary system implemented by the Defendant for the above period.
(C) In the faculty performance evaluation that serves as the basis for the annual salary for the 2014 and 2015 academic years, department evaluation and attendance evaluation were introduced in addition to individual performance evaluation, and accordingly, the weight of the admissions promotion item, which corresponds to the individual performance evaluation category, within the overall faculty performance evaluation standards decreased compared to before. However, it can be expected that, due to the Defendant’s unjust disciplinary actions against Plaintiff (Selected Party) and the related litigation, Plaintiff (Selected Party) would have been unable to engage in normal teaching activities or school promotion activities even after the 2014 academic year. In light of the course of the dispute, including the criminal accusations and disciplinary actions between the Professors’ Council formed by Plaintiff (Selected Party) and others and the Defendant, and the various lawsuits filed as a result, it is difficult to conclude that there was no cause attributable to the Defendant for Plaintiff (Selected Party)’s failure to serve as an admissions promotion committee member in the 2013 academic year.
(D) Plaintiff (Selected Party) has continuously raised issues, through litigation, regarding the unfairness of the performance evaluations for the academic years 2007 through 2013, and filed an objection to the entire 2014 academic year faculty performance evaluation results.
(2) Given these circumstances, the court below should have sufficiently examined whether the base salary, which is a component item of the annual salary under the annual salary system implemented by the Defendant, reflects the individual’s cumulative performance, and whether Plaintiff (Selected Party)’s faculty performance evaluation score, reflected in the calculation of the performance allowance for the 2014 and 2015 academic years, was proper, and then determined whether the base salary and performance allowance calculated by the Defendant were proper. Nevertheless, the court below dismissed Plaintiff (Selected Party)’s claim regarding the wages for the 2014 and 2015 academic years solely on the ground that it was insufficient to find that Plaintiff (Selected Party)’s faculty performance evaluation score was unfairly assessed as low due to causes attributable to the Defendant. The judgment below erred by failing to conduct the necessary examination as to the composition of the annual salary under the annual salary system implemented by the Defendant, the calculation of such annual salary, and whether the faculty performance evaluation, which serves as the basis for the payment of the performance allowance, was proper, thereby affecting the conclusion of the judgment. The ground of appeal of Plaintiff (Selected Party) pointing this out is well-founded.
3. Determination on the Grounds of Appeal of Selected Party Non-party
A. Relevant Legal Principles
Where an employer disadvantageously changes working conditions prescribed in the rules of employment without obtaining the consent of the employees, the effect of the change does not extend to existing employees whose vested interests are infringed by the change, and the former rules of employment continue to remain effective as to them (see Supreme Court en banc Decision 91Da45165 decided December 22, 1992).
A faculty member of a private university appointed for a fixed term has only the right to demand a fair review based on reasonable standards regarding the expectation of reappointment or whether reappointment will be granted, and if he or she is not reappointed following such review, he or she loses faculty status upon expiration of the term of appointment. However, where there are special circumstances such as a mandatory reappointment clause in the school foundation’s articles of incorporation, personnel regulations, or appointment contract, or where the term of appointment is merely a formality and the appointment contract has been continuously renewed such that a chain-like employment relationship is recognized, faculty status is not lost merely because the term of appointment has expired (see Supreme Court Decision 2013Da47583 decided September 25, 2014, etc.).
B. Judgment of the Court Below
The court below determined, for the following reasons, that the rules of employment concerning the annual salary system applied to Selected Party Non-party, and accordingly dismissed Selected Party Non-party’s claim. Selected Party Non-party entered into a new employment contract with the Defendant on March 1, 2011, and was reappointed after the expiration of his term of appointment. There is no mandatory reappointment clause in the Defendant school’s articles of incorporation or personnel regulations, and it cannot be said that the terms of appointment of faculty members, including Selected Party Non-party, were merely formalities such that a chain-like employment relationship of continuous renewal existed.
C. Judgment of the Supreme Court
This determination of the court below cannot be accepted, for the following reasons.
(1) According to the record, the following circumstances can be known.
(A) The First, Second, and Third Preceding Judgments determined that although Selected Party Non-party was reappointed as an assistant professor on April 1, 2000, and reappointed as an associate professor on March 1, 2010, it was difficult to view that, by virtue of such reappointments, he, like a newly appointed faculty member, accepted the working conditions under the changed rules of employment and newly entered into an employment relationship. The First, Second, and Third Preceding Judgments should be understood as having recognized that each of the above reappointments of Selected Party Non-party fell under special circumstances in which the term of appointment was merely a formality and the appointment contract had been continuously renewed such that a chain-like employment relationship was recognized.
(B) Since the Defendant’s personnel regulations concerning reappointment that applied at the time of Selected Party Non-party’s reappointment on March 1, 2011 did not differ from the regulations that applied at the time of his previous reappointments, it is difficult to evaluate the legal nature of the March 1, 2011 reappointment of Selected Party Non-party differently from the previous reappointments as determined in the First, Second, and Third Preceding Judgments.
(C) Among the cases in which reappointment was denied during the period from 2009 to 2015, the great majority involved contract faculty members in the non-tenure track, with only a small number involving tenure-track faculty members; and it appears that most of the tenure-track faculty members who were resolved to be denied reappointment were either subsequently reappointed or reappointed after receiving a decision revoking the disposition denying reappointment.
(2) In light of the legal principles set forth above, it is difficult to conclude, based solely on the circumstances cited by the court below, that the chain-like employment relationship recognized in the First, Second, and Third Preceding Judgments was severed by Selected Party Non-party’s reappointment as an associate professor on March 1, 2011. Nevertheless, the court below determined that it was difficult to view that an employment relationship with Selected Party Non-party continued to be recognized. The judgment below erred by misunderstanding the legal status of a private university faculty member appointed for a fixed term, and by failing to conduct the necessary examination, thereby affecting the conclusion of the judgment. The ground of appeal of Selected Party Non-party pointing this out is well-founded.
4. Conclusion
Without examining the remaining grounds of appeal, the judgment below is reversed, and the case is remanded to the court below for further examination and determination. This judgment is rendered as set forth in the Order, with the unanimous consent of the Justices.
[Attachment] List of Selected Parties: Omitted
Justice Roh Jeong-hee (Presiding Justice), Kim Jae-hyung (Justice in charge), Ahn Cheol-sang, Lee Heung-gu