[Plaintiffs, Appellee and Appellant]
[Plaintiffs, Appellant]
[Defendant, Appellant and Appellee] Korean Air Lines Co., Ltd. (Attorneys Kwak Hyun-su and 1 other, Law Firm Gwangjang, for the defendant)
[Lower Court Judgment] Seoul High Court Decision 2007Na55233 decided April 11, 2008
[Order]
The part of the lower court judgment against the Plaintiffs is reversed, and this part of the case is remanded to the Seoul High Court. The Defendant's appeal is dismissed.
[Reasoning]
The grounds of appeal are examined.
1. As to the Plaintiffs' grounds of appeal
A.
In light of the normative purpose of the provisions on holidays and paid holidays under the Labor Standards Act (근로기준법), it is deemed that the application of the special provision on paid holidays, which requires the employer to pay wages to an employee even without the provision of labor, is naturally premised upon a normal employment relationship, that is, a state in which the employee has been providing labor and continued provision of labor is expected. Therefore, during a period of leave of absence, or, likewise, during a period of strike in which the principal rights and obligations such as the obligation to provide labor are suspended and the employee's right to claim wages does not arise, the employee may not claim payment of wages for a paid holiday even if such paid holiday falls within that period (see, e.g., Supreme Court Decision 2007Da73277 decided December 24, 2009).
Furthermore, in light of the normative purpose of the provisions granting paid leave to employees under relevant statutes, collective agreements, employment rules, or employment contracts, such paid leave, like paid holidays, is also naturally premised upon a normal employment relationship. Accordingly, an employee's participation in a strike by using paid leave cannot be regarded as an exercise of the right to paid leave premised upon a normal employment relationship, and thus the right to claim wages for paid leave included within the strike period likewise does not arise.
B. The lower court determined that, from the point at which the Plaintiffs participated in the strike, they could not exercise rights such as "days off" or leave against the employer, and that since the Plaintiffs' right to claim wages did not arise with respect to the portion corresponding to the number of days without labor during the strike period, it was justified for the Defendant, in calculating the wages of the Plaintiffs who participated in the strike, to treat as absence (ABS) all days scheduled during the strike period as annual leave (ALV) and other paid leave, as well as various types of "days off" (DO, ADO, RDO, ATDO, etc.), and to deduct and not pay the portion of the basic salary corresponding to those days. On this basis, the lower court rejected in its entirety the Plaintiffs' claim for payment of the deducted basic salary on the ground that such deduction was unjustified.
First, the lower court's determination that the Plaintiffs may not claim payment of the basic salary corresponding to paid holidays and paid leave included within the strike period, as an exercise of the right to claim wages therefor, is justified.
However, even under the legal principles set forth above, the Defendant may only deduct, from the basic salary paid monthly in the form of a monthly salary, the wages corresponding to paid leave and paid holidays included within the strike period; since the basic salary does not include wages for "unpaid" holidays, even if unpaid holidays are included within the strike period, wages therefor may not be deducted. Since the Plaintiffs assert that "days off" are unpaid holidays, the lower court should have first examined whether "days off" are in fact paid holidays or unpaid holidays, and then determined whether the deduction of basic salary for "days off" included within the strike period was justified.
Nevertheless, without reaching this point, the lower court summarily concluded that the basic salary could be deducted for all days treated as absence during the strike period, including "days off." Such determination by the lower court contains an error of law based on a misunderstanding of the legal principles concerning basic salary and holidays, and the ground of appeal pointing out this error has merit.
2. As to the Defendant's grounds of appeal
A.
An employee's industrial action is a collective and organized act of work stoppage against the employer in order to advantageously develop a dispute arising from a disagreement between the parties to a labor relationship regarding working conditions. Therefore, during the period of such industrial action, the employee is released from, among other things, the obligation to provide labor, which is the principal obligation owed to the employer, and the principal rights and obligations of the employee and employer under the employment contract are suspended, such that the employer cannot exercise its right of direction over labor with respect to the employee's provision of labor (see, e.g., Supreme Court en banc Decision 94Da26721 decided December 21, 1995).
B. The lower court determined that, since the Plaintiffs listed in the lower court's Attached List 1-1 actually flew 30 hours or more at the time in question, the Defendant was obligated to pay them the flight allowance corresponding to the 75-hour basic flight guarantee allowance, and that the said Plaintiffs' participation in the strike in this case could not be deemed to fall under "unauthorized absence or refusal of a flight assignment order," which is prescribed under Article 4, Paragraph 3 of the Wage Agreement as an exceptional ground for non-payment of the basic flight guarantee allowance. Accordingly, the lower court accepted the said Plaintiffs' claim regarding the unpaid portion of the flight allowance. This determination by the lower court is justified in light of the legal principles set forth above and the record, and it does not contain an error of law, such as a misunderstanding of the legal principles concerning the interpretation of the Wage Agreement and other collective agreements, as alleged in the Defendant's grounds of appeal.
3. Conclusion
Therefore, the part of the lower court judgment against the Plaintiffs is reversed, and this part of the case is remanded to the court below for further hearing and determination, and the Defendant's 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 Yang Sung-tae (Presiding Justice), Kim Ji-hyung, Jeon Soo-an (Justice in Charge), Yang Chang-soo