[Plaintiff (Selected Party), Appellee] Plaintiff (Attorney Shin Young-hoon, Counsel for the Plaintiff)
[Defendant, Appellant] ○○○ Co., Ltd. (Law Firm Haeoreum, Attorneys Jin Young-jin and 1 other, Counsel for the Defendant)
[Judgment Below] Jeju District Court Judgment 2011Na1392, dated October 5, 2011
[Order]
The appeal is dismissed. The costs of the appeal shall be borne by the Defendant.
[Reasoning]
The grounds of appeal (including the supplementary appellate brief submitted after the expiration of the period for submitting the grounds of appeal, to the extent it supplements the grounds of appeal) are examined as follows.
1. Regarding the payment of annual leave allowance
Article 60(1) of the Labor Standards Act (근로기준법) provides, with respect to annual paid leave, that “an employer shall grant 15 days of paid leave to an employee who has attended work for at least 80% of the year.” The purpose of this provision is to provide employees with an opportunity for mental and physical rest by exempting them from the duty to work for a certain period, and to promote the enhancement of their cultural life (see Supreme Court Decision 95Nu6649, decided June 11, 1996, etc.). Such annual paid leave is not automatically guaranteed merely because an employee is in a relationship of providing labor to an employer; rather, it is granted only when the employee has attended work for at least 80% of the year. Therefore, absent other special circumstances, it may be regarded as consideration for one year of labor, and accordingly, the annual leave allowance that an employee may claim against the employer as a result of being unable to use annual paid leave constitutes wages (see Supreme Court Decision 91Da14826, decided November 12, 1991, Supreme Court Decision 99Da10806, decided December 22, 2000, etc.).
Here, whether an employee has attended work for at least 80% of the year must be determined based on the ratio of the number of days the employee actually provided labor to the number of days on which the employee had a duty to work during the year (hereinafter “annual scheduled working days”), which is calculated by excluding, from the total calendar days of the year, the days designated as days without a duty to work pursuant to statutes, collective agreements, employment rules, etc. The annual scheduled working days are premised on a normal employment relationship between the employer and the employee, that is, a state in which the employee has been providing labor to the employer and continued provision of labor is scheduled (see Supreme Court Decision 2011Da4629, decided December 26, 2013).
Meanwhile, where an employer dismisses an employee but the dismissal is invalid due to lack of justifiable grounds, the employee may claim payment in full of the wages that the employee would have received had the employee continued to work normally during the period of unjust dismissal. Even though the dismissed employee did not actually work during the period of dismissal, since the dismissal is invalid, the employment relationship with the employer continues during that period, and the employee's failure to work during the period of dismissal is attributable to the employer who unjustly dismissed the employee (see Supreme Court Decision 81Da626, decided December 22, 1981).
Therefore, even where the wages that an employee failed to receive due to unjust dismissal are an annual leave allowance, if the requirements of Article 60(1) of the Labor Standards Act are satisfied in light of the employee's annual scheduled working days and the number of days actually attended, the annual leave allowance must be paid on the premise that annual paid leave is granted. In calculating the annual scheduled working days and the number of days attended for this purpose, the period during which the employee failed to attend work due to the employer's unjust dismissal may not be considered disadvantageously to the employee; thus, it is appropriate to view that such period is included in both the annual scheduled working days and the number of days attended. This conclusion does not change even where the period of unjust dismissal occupies the entirety of the total annual working days.
The court below, having comprehensively considered the adopted evidence, found the facts as stated in its reasoning, and then determined that since the Plaintiff (Selected Party) and the Selected Parties (hereinafter collectively “Plaintiffs”) all had an attendance rate (days attended/scheduled working days) of at least 80% for both 2008 and 2009, including the period of dismissal, the Plaintiffs had all accrued the statutory number of days of annual paid leave pursuant to Article 60 of the Labor Standards Act and Article 25 of the collective agreement. On this premise, the court below calculated the number of days of annual paid leave for each of the Plaintiffs for 2008 and 2009, and determined that the Defendant was obligated to pay the Plaintiffs the corresponding annual leave allowances. The court below rejected, for the reasons stated in its reasoning, the Defendant's argument that annual paid leave does not accrue where the period of unjust dismissal constitutes the entirety of the total annual working days.
Examining the reasoning of the judgment below in light of the legal principles set forth above and the record, the above determination by the court below is justified, and there is no error therein, as alleged in the grounds of appeal, in misunderstanding the legal principles concerning the interpretation or application of Article 60(1) of the Labor Standards Act.
2. Regarding whether the payments constitute ordinary wages
Ordinary wages are prescribed by the Labor Standards Act in order to establish standards for working conditions, and are not of such a nature that the employer and employees may separately agree upon the meaning or scope thereof by way of a collective agreement or otherwise. Therefore, even if labor and management agree to exclude from ordinary wages any wage that, by its nature, falls under ordinary wages as defined by the Labor Standards Act, such agreement is invalid. The provisions of the Labor Standards Act requiring an additional payment of at least 50% of ordinary wages for extended, night, or holiday work set the minimum standard for the calculation of wages for such work; therefore, where labor and management agree to calculate the additional wages for extended, night, or holiday work while excluding, in part, wages that have the nature of ordinary wages, if the amount calculated pursuant to such labor-management agreement falls short of the aforementioned standard prescribed by the Labor Standards Act, the labor-management agreement is invalid to the extent of such shortfall, and the invalidated portion must be governed by the standard prescribed by the Labor Standards Act (see Supreme Court en banc Decision 2012Da89399, decided December 18, 2013, etc.).
The court below, having comprehensively considered the adopted evidence, found the facts as stated in its reasoning, and then determined that the collective agreement in this case, which excluded adjustment allowance, sales allowance, household stabilization expenses, etc. from the ordinary wages serving as the basis for calculating the annual leave allowance and the living stabilization allowance sought by the Plaintiffs, is invalid as being in violation of the Labor Standards Act, and recognized the amounts of the said annual leave allowance, etc. in accordance with the number of days of annual paid leave determined by the Defendant and the method of calculating ordinary wages.
Examining the reasoning of the judgment below in light of the legal principles set forth above and the record, the above determination by the court below is justified, and there is no error therein, as alleged in the grounds of appeal, in misunderstanding the legal principles concerning the calculation of ordinary wages or the validity of a collective agreement concerning ordinary wages.
3. Conclusion
Therefore, the appeal is dismissed, and the costs of the appeal are to be borne by the losing party. This judgment is rendered as stated in the Order by the unanimous opinion of the participating Justices.
[Attachment: List of Selected Parties: Omitted]
Justice Kim Shin (Presiding Justice), Min Il-young, Lee In-bok (Justice in charge), Park Bo-young