[Plaintiff (Counterclaim Defendant), Appellant] Plaintiff (Counterclaim Defendant) (Law Firm Sangrok, Attorneys Kang Sin-ha and 1 other, Counsel for the Plaintiff)
[Defendant (Counterclaim Plaintiff), Appellee] Podowine Co., Ltd. (Attorney Lim Young-ho, Counsel for the Defendant)
[Judgment Below] Suwon District Court Judgment 2017Na72256, 72263, dated May 29, 2018
[Order]
The part of the judgment below concerning the retirement allowance claim in the principal action, in which the Plaintiff (Counterclaim Defendant) lost, is reversed, and this part of the case is remanded to the Panel Division of the Suwon District Court. The remainder of the appeal is dismissed.
[Reasoning]
The grounds of appeal are examined.
The court below found that the Defendant (Counterclaim Plaintiff, hereinafter “the Defendant”) had transferred money to a bank account in the name of a non-party individual on behalf of the Plaintiff (Counterclaim Defendant, hereinafter “the Plaintiff”) from June 18, 2012 to February 8, 2013. However, citing the circumstances stated in its judgment, the court below held that the entirety of that money could not be regarded as ordinary wages forming the basis for calculating average wages, and that there was no other evidence to specify the ordinary wages for the above period. On these grounds, the court below did not accept the amount of retirement allowance claimed by the Plaintiff, and instead calculated the retirement allowance based on a smaller amount of ordinary wages that the Defendant did not dispute, thereby partially rejecting the Plaintiff’s claim for retirement allowance.
Where an employee retires, the employer must pay the retirement allowance within 14 days from the date the cause for payment arose (Article 9 of the Act on the Guarantee of Employees’ Retirement Benefits (근로자퇴직급여 보장법)). The retirement allowance is to be calculated based on an average wage of not less than 30 days’ pay for each year of continuous service (Article 8, Paragraph 1 of the same Act), and “average wage” means the amount obtained by dividing the total amount of wages paid to the employee during the three months prior to the date on which the cause for the calculation arose by the total number of days in that period (Article 2, Paragraph 1, Item 6 of the Labor Standards Act (근로기준법)).
Even where money or valuables paid to an employee are paid pursuant to a collective agreement, employment rules, employment contract, or the employer’s policy, if the obligation to pay such money or valuables arose directly in connection with, or is closely related to, the provision of labor—that is, if it was paid as compensation for labor—then, regardless of its name, it must be regarded as wages subject to the calculation of average wages (see Supreme Court en banc Decision 97Da5015, decided May 12, 1999, etc.).
As such, since the wages that serve as the standard for calculating an employee’s retirement allowance are the average wages referred to above, the court below should have examined whether the money the Plaintiff received from the Defendant constituted compensation for labor, etc., in order to determine whether it corresponded to average wages. Nevertheless, the court below confused the wages serving as the standard for calculating the retirement allowance with ordinary wages, rather than average wages, and thereby partially rejected the Plaintiff’s claim for retirement allowance. This judgment of the court below contains an error in misapprehending the legal principles concerning average wages or in failing to conduct the necessary examination, and it is clear that this error affected the judgment. The ground of appeal pointing this out is well-founded.
Meanwhile, although the Plaintiff appealed against the entirety of the portion of the judgment below in which the Plaintiff lost, the Plaintiff did not state the grounds of appeal in the petition of appeal with respect to the portion concerning wages for February 2013, nor did the Plaintiff state the grounds for objection in the appellate brief.
Therefore, the part of the judgment below concerning the retirement allowance claim in the principal action, in which the Plaintiff lost, is reversed, and this part of the case is remanded to the court below for further examination and determination, and the remainder of the appeal is dismissed. This judgment is rendered as set forth in the Order by the unanimous opinion of the Justices participating in the decision.
Justice Cho Hee-dae (Presiding Justice), Kim Jae-hyung, Min Yu-sook (Justice in charge), Lee Dong-won