[Plaintiffs, Appellants]
[Defendant, Appellee]
[Judgment Below] Seoul Central District Court Decision 2015Na46101 dated July 21, 2016
[Order]
The part of the judgment below against the Plaintiffs is reversed, and this part of the case is remanded to the Panel Division of the Seoul Central District Court.
[Reasoning]
The grounds of appeal are examined.
1. The court below found as follows regarding the Plaintiffs' argument that, even during their lunch and dinner meal break times (12:00-13:00, 18:00-19:00) and night break time (24:00-04:00), the Plaintiffs took parasleep (also called "dissociated sleep," referring to a state in which the activity of the head and the activity of the body are separated—that is, a state in which the body is sleeping while the head is active) or had meals in the guard post under the direction and supervision of the employer, and that the Defendant nonetheless failed to pay wages for this time, such that the Defendant is obligated to pay the Plaintiffs wages corresponding to 6 hours of overtime work per day: ① since the Plaintiffs' performance of patrol duties during the night break time on the Defendant's instructions constitutes overtime work, the Defendant is obligated to pay wages for this; however, ② as for the remaining break time, on the premise that, in the case of workers engaged in monitoring or intermittent work, restrictions on leaving the workplace to the minimum extent necessary may be imposed in order to maintain an emergency contact system in case of urgent situations, although the Special Instruction (No. 1) and the Important Matters for Employees to Note, which the Defendant instructed the security guards in writing through the building manager, state that "during 24:00-04:00, while in a parasleep state, respond immediately if an urgent matter arises (no separate sleeping time or place)," this should be regarded as attributable to the form of work in which the Plaintiffs had to inevitably commence work due to emergencies during the night break time; ㉡ the statement in the June morning assembly training content for management staff that "during rest between shifts, maintain a resting (parasleep) state, not sleeping," and the statement in the main instructions that "turn off the lights at the guard post and sleep during late night hours," were conveyed as civil complaint matters, and it is difficult to see that there was substantive direction and supervision by the Defendant regarding the Plaintiffs' meal break time and night break time; ㉢ although it is true that the Defendant's security team leader, team leader, etc. conducted patrols during the night break time, this was mainly for the purpose of checking the blinking status of the surrounding security lights, checking the locking status of the basement, monitoring persons entering and exiting the rooftop, preventing theft, preventing fire accidents and managing facility safety, and preventing crime, and it is difficult to see that this extended to monitoring and supervising the working conditions of the security guards, such as whether they were taking parasleep or leaving their posts; ㉣ some of the security guards did have meals or take rest in the basement; and based on these circumstances, the court below determined that, as to this portion of the break time, it cannot be said that the Plaintiffs performed overtime work under the Defendant's substantive direction and supervision, and thus the Defendant has no obligation to pay wages for this.
2. However, the judgment of the court below is difficult to accept for the following reasons.
A. Working hours under the Labor Standards Act (근로기준법) refer to the time during which an employee provides labor under an employment contract under the direction and supervision of the employer. Even standby time, rest time, or sleep time during which an employee is not actually engaged in work during working hours is included in working hours if such time is not guaranteed to the employee as break time for free use, but is substantively time under the direction and supervision of the employer (see Supreme Court Decision 2006Da41990 dated November 23, 2006).
B. According to the reasoning of the judgment below and the evidence lawfully adopted, the following facts can be established.
1) The Plaintiffs were security guards at ○○ Apartment (hereinafter "○○ Apartment"), located at (address omitted), Seocho-gu, Seoul; Plaintiff 1 performed security duties at ○○ Apartment from August 28, 2011 to February 28, 2014; Plaintiff 2 from August 28, 2009 to March 31, 2013; Plaintiff 3 from November 2, 2010 to December 27, 2012; Plaintiff 4 from August 11, 2011 to the present; and Plaintiff 5 from April 25, 2003 to November 27, 2013.
2) Around October 2006, the Defendant obtained approval from the Minister of Employment and Labor for monitoring/intermittent workers. At the time of this case, security guards at ○○ Apartment worked 24 hours from 07:00 to 07:00 the following day, on an alternating-day basis with the following day off, with actual working hours of 18 hours and total break time of 6 hours, consisting of a 1-hour lunch break (12:00-13:00), a 1-hour dinner break (18:00-19:00), and a 4-hour night break (24:00-04:00).
3) The Defendant paid wages to the Plaintiffs based on 18 working hours, and the Plaintiffs, on the Defendant's instructions, performed patrol duties for 1 hour during the night break time on 4 out of every 6 days.
4) On January 20, 2014, Plaintiff 1 sent a certified letter to the Defendant to the effect that "the guard post (security office) is a workspace, not a rest space, and although the Defendant received a corrective order from the Seoul Regional Employment and Labor Office around April 5, 2012 for 'failure to install a rest or sleeping area,' this has not been corrected for nearly two years; a rest area should be installed as soon as possible, and since having the guards keep the lights on at the security office, wear their uniforms, sit in a chair, and rest in a parasleep state during break time, particularly during the night break time (24:00-04:00), cannot be considered break time, wages for overtime work should be paid."
5) On February 6, 2014, the Defendant posted a notice to the residents regarding the security staff's break time, etc., stating: "1. The break time of security staff is guaranteed under the employment contract as 1 hour for lunch, 1 hour for dinner, and 4 hours between 10:00 p.m. and 6:00 a.m. 2. Security staff may, if they wish, use a separate rest facility apart from the security office to rest. 3. During late-night break time, patrol teams will be organized to strengthen patrol activities." On February 8, 2014, the Defendant made signs stating "Break Time" and "On Patrol" and had them attached to the guard posts (security offices). On February 13, 2014, the Defendant installed a rest room for security guards and allowed the guards to use it during break time.
6) Meanwhile, the Defendant, through the building manager, instructed the security guards in writing as follows: ① On January 20, 2011, in response to the issue of lax work discipline among security guards raised at the residents' representative meeting, the Defendant urged immediate correction and issued Special Instruction (No. 1) directing "during night break time (24:00-04:00), while in a parasleep state, respond immediately if an urgent matter arises (no separate sleeping time or place)"; ② on February 24 and March 7, 2011, through the Important Matters for Employees to Note, stating that this was a matter continuously pointed out at the residents' representative meeting, the Defendant again instructed "during night break time (24:00-04:00), while in a parasleep state, respond immediately if an urgent matter arises (no separate sleeping time or place)," and directed that this be understood and continuously applied; ③ on August 20, 2012, as a main instruction from the building manager, the Defendant disseminated the fact that residents in Buildings 2, 8, 11, 12, 14, 17, 18, and 23 had filed complaints about "the act of turning off the lights at the guard post and sleeping during late night hours." ④ Additionally, the security log entry dated September 3, 2012 states: "Late night hours: parasleep state; eradicate the act of turning off the lights at the guard post and sleeping."
C. Examining these facts in light of the legal principles set forth above:
1) The court below found that, although the Special Instruction (No. 1) and the Important Matters for Employees to Note, which the Defendant instructed the security guards in writing through the building manager, state "during 24:00-04:00, while in a parasleep state, respond immediately if an urgent matter arises (no separate sleeping time or place)," this should be regarded as attributable to the form of work in which the Plaintiffs had to inevitably commence work due to emergencies during the night break time, and that it is difficult to see that there was substantive direction and supervision by the Defendant regarding the night break time and meal time. However, considering that the Special Instruction (No. 1) and the Important Matters for Employees to Note, which the Defendant instructed in writing through the building manager, directed the guards, on the premise that they had no separate sleeping time or place, to sit in a chair inside the guard post (security office) during the night break time (24:00-04:00) and take a parasleep state while responding immediately if an urgent matter arose; that the Defendant directed the lights to be kept on inside the guard post (security office) during the night break time; and that the patrol duty carried out on the Defendant's instructions during the night break time was not performed at a fixed time for each security guard every time, and this appears to have interfered with the free use of the remaining break time—taking all this together, it is difficult to view the Plaintiffs' night break time as rest/sleep time in which free use was guaranteed, and there is sufficient room to view it as standby time in preparation for any emergency that might arise.
2) Furthermore, considering that residents continuously filed complaints about security guards who turned off the lights at the guard post (security office) and slept during the night break time; that the security log entry dated September 3, 2012 states "Late night hours: parasleep state; eradicate the act of turning off the lights at the guard post and sleeping"; that a non-party who once served as the leader of a patrol team stated that "while patrolling around 24:00-04:00, I observed and reported whether the lights at the guard post (security office) were off and whether the security guard was in a parasleep state"; and that the Defendant used complaints raised by residents as grounds for evaluation in assessing the security guards' work performance, and such evaluation results appear to have affected whether the guards' contracts would be renewed—taken together, there is substantial room to view that the Defendant, through the building manager, exercised substantive direction and supervision over the night break time, etc.
3) The court below found that some security guards, before the installation of the security guards' rest room around February 13, 2014, ate meals or took rest in the basement rather than in the guard post (security office). However, even according to the Defendant's own assertions, the basement used by some security guards was a space used as an air-raid shelter, and thus not an appropriate place to rest; the main instructions of the building manager dated November 1, 2012 pointed out "prohibition of bringing unnecessary items into the basement: general items to be disposed of, including beds, chairs, empty flowerpots, recyclables"; the main instructions of the building manager dated July 2, 2012 stated that, as a result of a safety inspection of the basement conducted from June 18 to June 29 of that year, penalty points were imposed on those responsible for "leaving a wooden ladder unattended, unauthorized heating appliances, leaving discarded items unattended, installing a bed, [installing] a communal dining table, etc."; and the main instructions of the building manager dated July 25, 2012 pointed out poor work discipline on the part of those using beds in the basement. Considering all of this together, it is difficult to say that, because some security guards, due to the absence of a separate rest area at ○○ Apartment, were forced to eat or rest in the basement despite risking disciplinary action from the Defendant, the Defendant thereby provided a rest area to the security guards, including the Plaintiffs, or guaranteed the free use of a rest area.
4) Considering that it was only on February 6, 2014 that the Defendant first notified the residents, through a notice, of the security staff's break time and rest area; that on February 8, 2014, the Defendant made signs stating "Break Time" and "On Patrol" and had them attached to the security office; that on February 13, 2014, the Defendant installed a rest room for security guards and allowed the guards to use it during break time; and that prior to these measures by the Defendant, residents continuously demanded correction, through complaints and residents' representative meetings, of the practice of security guards turning off the lights at the security office and sleeping during the night break time—it can be seen that, prior to February 2014, the Defendant made no particular effort to guarantee the security guards' break time, without properly informing the residents of the guards' break time.
5) In light of the legal principles set forth above, considering these circumstances, it is ultimately difficult to say that a substantial portion of the Plaintiffs' break time was, in substance, guaranteed as free rest/sleep time outside the Defendant's direction and supervision. This being so, the court below should have sufficiently examined matters such as: whether the Plaintiffs were provided with an independent rest space by the Defendant apart from the guard post (security office); whether the Plaintiffs' spending of break time at the guard post (security office), rather than an independent rest space, was of the Plaintiffs' own voluntary will; whether the Plaintiffs freely rested or slept during break time without being subject to the Defendant's direction and supervision; whether the Defendant ever instructed the Plaintiffs to perform guard duty or patrols during break time, or monitored the Plaintiffs' work conditions or received reports thereon; whether the Plaintiffs' remaining break time was interfered with due to the Defendant's instructions to perform guard duty or patrols during break time; and whether such interference with break time was due to unavoidable circumstances—and only then should it have determined whether the Plaintiffs remained under the Defendant's substantive direction and supervision even during break time.
6) Nevertheless, without closely examining the above circumstances, the court below determined, based solely on the circumstances stated in its judgment, that only the Plaintiffs' performance of patrol duty during the night break time on the Defendant's instructions constituted overtime work during break time, for which the Defendant is obligated to pay wages, and that, as for the remaining break time, it cannot be said that the Plaintiffs performed overtime work under the Defendant's substantive direction and supervision, such that the Defendant has no obligation to pay wages for this portion. This determination by the court below is unlawful, in that it failed to conduct the necessary examination, exceeded the limits of the principle of free evaluation of evidence in violation of the rules of logic and experience, thereby misapprehending the facts, or misunderstood the legal principles concerning working hours and break time under the Labor Standards Act, and thereby affected the judgment. The ground of appeal pointing this out is well-founded.
3. Conclusion
Therefore, the part of the judgment below against the Plaintiffs is reversed, and this part of the case is remanded to the court below for further examination and determination, and it is so decided as set forth in the Order, by the unanimous opinion of the Justices participating in the decision.
Justice Kim Yong-deok (Presiding Justice), Kim Shin, Park Sang-ok (Justice in Charge), Park Jeong-hwa