[Plaintiff (Selected Party), Appellant] Plaintiff (Selected Party)
[Defendant, Appellee] ○○ Hyundai Apartment Residents' Representative Council (Attorney Kim Chul-gi, Counsel for the defendant)
[Lower Court Judgment] Busan District Court Judgment of June 8, 2006, Case No. 2005Na13872
[Order]
The part of the lower court judgment concerning the plaintiff (selected party)'s loss with respect to the amount below the minimum wage is reversed, and this part of the case is remanded to the Panel Division of the Busan District Court (Main Office).
[Reasoning]
The grounds of appeal are examined.
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, or sleep time during which the employee is not actually engaged in work during working hours shall be included in working hours if such time is not a rest period during which the employee is guaranteed free use of the time, but rather is time during which the employee remains substantially under the direction and supervision of the employer (see Supreme Court Decision 92Da24509, delivered May 27, 1993).
Examining the record of this case in light of this legal principle, in calculating the actual daily working hours of the plaintiff (selected party) and the selected parties (hereinafter collectively referred to as "the plaintiffs"), who entered into an employment contract with the defendant and performed apartment security work on an alternating-day basis, working 24 hours from 09:00 to 09:00 the following day and then resting for 24 hours, the lower court's measure—based on written confirmations prepared by some security guards of the apartment complex at issue, stating that "rest time consists of one hour for lunch and one hour for dinner, and in practice about 3 to 4 hours of sound sleep is taken at night"—of excluding from the actual working hours the two hours of rest time for lunch (12:00 to 13:00) and dinner (18:00 to 19:00) as well as approximately 4 hours of nighttime sleep time, is difficult to accept for the following reasons.
That is, according to the record, the Guard Duty Rules (관리원 근무수칙) prepared by the management office of the ○○ Hyundai Apartment (in which the term "관리원," i.e., "management personnel," appears to mean "security guard") state that "if a guard is found continuously sleeping during night duty by a building representative, the management office chief, or the management team leader, disciplinary action shall be taken according to the person in charge." In addition, non-party 1, who had worked as a management staff member and management team leader at the said apartment complex for 10 years, appeared as a witness in the lower court and testified that "the defendant never provided six hours of rest time; when I was serving as management team leader, I patrolled the guard posts by bicycle from time to time during the day, and from 23:00 to 05:00 the following day at night, in order to monitor and supervise guards who might be dozing off or sleeping during the late-night hours, and I did in fact catch guards doing so." Furthermore, former and current management staff members of the said apartment complex, including the plaintiffs, prepared and submitted written confirmations (Exhibit Gap No. 9-1 through 9-12) stating that "during our employment, we were never officially given any rest time. There was no lunch or dinner break at all, and even during the late-night hours, aside from occasionally dozing off while sitting on a chair with our shoes on, there was not a single hour of rest time during the 24-hour shift." Also, it can be seen that non-party 2, the former representative of the defendant, stated during an investigation at the Busan Dongnae Regional Labor Office in connection with the plaintiffs' demand for payment of wages, that "in the case of security guard workers who work on an alternating-day basis, rest time is taken at the workers' own discretion" (Exhibit B No. 7-7).
In light of the above evidence, it cannot be said that the written confirmations cited as evidence by the lower court are sufficient, by themselves, to establish that the plaintiffs were given six hours of rest time per day. At the very least, the lower court should have specifically examined the actual conditions of the plaintiffs' work during lunch, dinner, and nighttime hours, and should have excluded from the actual working hours only such meal time and sleep time as could be found to have been completely free from the direction and command of the defendant employer and to have been guaranteed for the plaintiffs' free use.
Nevertheless, the lower court hastily concluded that the plaintiffs' actual daily working hours were 18 hours, excluding 6 hours of rest time, and calculated the minimum wage on that basis. Such lower court judgment is unlawful in that it failed to exhaust its examination and, in violation of the rules of evidence, erroneously found the facts, or misunderstood the legal principles concerning rest time under the Labor Standards Act, thereby affecting the judgment. The ground of appeal pointing this out is well-founded.
Therefore, the part of the lower court judgment concerning the plaintiffs' loss with respect to the amount below the minimum wage is reversed (the plaintiffs did not appeal against the part dismissing the claims for night-shift allowance, annual/monthly leave allowance, bonus, retirement allowance, and payment for proceeds from the sale of recyclables), and this part of the case is remanded to the court below for further hearing and determination. It is so ordered, by the unanimous opinion of the Justices participating.
Presiding Justice Kim Hwang-sik, Justice Kim Young-ran, Justice Lee Hong-hoon, Justice Ahn Dae-hee (Justice in charge)