[Plaintiffs, Appellants and Appellees] Plaintiff 1 and 27 others
[Plaintiff, Appellant] Plaintiff 29 (Attorneys Baek Seung-heon and one other, Counsel for the Plaintiffs)
[Defendant, Appellee and Appellant] Seoul Metropolitan ○○○-gu Medical Insurance Cooperative (Dongyang General Law Firm, Attorney Kim Seong-gi and two others, Counsel for the Defendant)
[Judgment Below] Seoul District Court Decision 93Na50078, decided November 10, 1995
[Order]
Among the Defendant's appeals against Plaintiff 2, Plaintiff 7, Plaintiff 9, Plaintiff 18, Plaintiff 26, and Plaintiff 28, the portion of the appeal exceeding the portion of the judgment below that was rendered in favor of said Plaintiffs is dismissed. Among the portions of the judgment below in which the Defendant lost, the portion ordering payment of the January 1990 long-service allowance to the remaining Plaintiffs excluding Plaintiff 4 and Plaintiff 29 is reversed, and this part of the case is remanded to the Panel Division of the Seoul District Court. The Plaintiffs' appeals and the remainder of the Defendant's appeal are all dismissed. The costs of the appeal with respect to the portions dismissed or rejected shall be borne by each respective party.
[Reasoning]
1. The Court determines ex officio as follows.
The Defendant filed an appeal against all of the remaining Plaintiffs except Plaintiff 29; however, even on the face of the petition of appeal, it is clear that the appeal against Plaintiff 2, Plaintiff 7, Plaintiff 9, Plaintiff 18, Plaintiff 26, and Plaintiff 28 exceeds the portion of the judgment below rendered in favor of said Plaintiffs, and therefore the appeal with respect to such excess portion is unlawful for lack of interest in appeal.
2. The Court determines the Plaintiffs' grounds of appeal.
According to the reasoning of the judgment below, in determining the scope of wages to be included in the calculation of ordinary wages, the court below determined that the meal allowance, which was paid only once in June 1989 and not in other months until it began to be paid on a fixed basis from January 1990, should be included in ordinary wages only from the amounts paid from January 1990 onward, and that the civil petition public relations allowance, which was paid from April 4, 1991, should likewise be included in ordinary wages only from the amounts paid from that date. In light of the evidence presented to the court below, the court below's fact-finding and determination are found to be justified and acceptable, and there is no illegality in violation of the rules of evidence as argued in the grounds of appeal. Therefore, this argument cannot be accepted.
3. The Court determines the Defendant's grounds of appeal.
As to Ground 1
With respect to the portion of the Plaintiffs' claim for unpaid long-service allowance, the court below determined that, among the Plaintiffs, all except Plaintiff 4 and Plaintiff 29, who had not yet been employed at the time, participated in a strike from October 23, 1989 to December 29 of the same year and did not report to work; and that around December 1991 as well, all Plaintiffs except Plaintiff 6, Plaintiff 23, Plaintiff 29, and Plaintiff 24, who worked normally, and Plaintiff 26, Plaintiff 27, and Plaintiff 28, who were dismissed on the 7th of that month, and Plaintiff 2, who was subjected to a three-month suspension, participated in the strike for a considerable period and did not report to work. The court below further determined that, in general, employees who do not provide labor to their employer due to industrial action cannot claim wages, which are compensation for labor, under the principle of "no work, no pay"; however, this principle of "no work, no pay" does not apply to wages that are not paid in exchange for the actual provision of labor, but rather are paid based on the employee's status as such, as a component guaranteeing livelihood, and which, under the interpretation of the relevant employment contract, are to be paid regardless of whether labor was actually provided. The court below noted that, under the Defendant Cooperative's Operating Regulations, the long-service allowance is paid to persons including those who receive only a part of their base pay (Article 106, Paragraph 1); that for persons who have been subjected to disciplinary action of salary reduction or more severe, and persons who have been subjected to suspension from position, the long-service allowance is to be paid at a reduced rate, with a reduction of one-ninth of the long-service allowance for each month of suspension in the case of persons subjected to disciplinary suspension (Article 106, Paragraph 2); and that persons receiving only a part of their remuneration include those absent without leave, those on leave of absence, and those suspended from position (Article 99, Paragraph 5, Article 100, Article 101). The court below found that although the said Plaintiffs, having failed to provide normal labor due to the industrial action, had their base pay reduced pursuant to Article 99, Paragraph 5 of the Operating Regulations in the same manner as those absent without leave, the said Plaintiffs undoubtedly received a portion of their base pay, and therefore, with the exception of Plaintiff 2 whose allowance was reduced due to disciplinary suspension, all fall within the category of persons entitled to full payment of the long-service allowance. The court below further found that the Operating Regulations contain no separate provision concerning persons who did not provide labor due to industrial action, and that there is no evidence in this case of any practice concerning this matter; accordingly, the long-service allowance, being wages of a livelihood-guaranteeing character, is of a nature that should be paid regardless of whether the employee failed to actually provide labor due to absence or otherwise, and the term "person who has continuously worked" under Article 106, Paragraph 1 of the Operating Regulations does not mean a person who has actually provided labor, but rather a person who has continuously maintained employee status. On this basis, the court below determined, in effect, that the Defendant Cooperative is obligated to pay the unpaid long-service allowance: for the January 1990 allowance, to all the remaining Plaintiffs except Plaintiff 4 and Plaintiff 29; and for the January 1992 allowance, to all the remaining Plaintiffs except Plaintiff 6, Plaintiff 23, Plaintiff 29, and Plaintiff 24, who received the full long-service allowance.
Upon examination, according to the Defendant Cooperative's Operating Regulations adopted as evidence by the court below, Article 106, Paragraph 1 of the Operating Regulations in effect at the time of the payment of the January 1990 long-service allowance provided that officers and employees shall be paid a long-service allowance on the payday of January and July of each year, within budgetary limits, in accordance with the payment standards of Appended Table 16 and the following subparagraphs, and Subparagraph 1 provided that the long-service allowance paid in January shall be paid to persons who hold the status of officer or employee as of January 1 and who have continuously worked (including those who receive only a part of their remuneration) since December 1 of the previous year. However, following a subsequent partial amendment, Article 106, Paragraph 1 of the Operating Regulations in effect at the time of the payment of the January 1992 long-service allowance provided that officers and employees shall be paid a long-service allowance on the payday of January and July of each year, within budgetary limits, in accordance with the payment standards of Appended Table 16 and the following subparagraphs, and Subparagraph 1 provided that the long-service allowance paid in January shall be paid to persons who hold the status of officer or employee as of January 1 and who, among those who are paid base pay as of January 1, have continuously been paid base pay (including those who receive only a part of their base pay) since December 1 of the previous year. In light of the purpose of the regulation and the meaning of the terms, it is proper to interpret the term "person who has continuously worked" under the Operating Regulations in effect at the time of payment of the January 1990 long-service allowance as meaning a person who has actually provided labor without interruption during the period subject to the long-service allowance, and it is not permissible to depart from this regulation and conclude that the long-service allowance is, by nature, a livelihood-guaranteeing wage, nor to treat a person who participated in industrial action and was absent without leave in the same manner as a person deemed to have continuously worked, such as an absentee whose remuneration is reduced on the premise of a normal employment relationship (see Supreme Court en banc Decision 94Da26721, decided December 21, 1995). Therefore, the determination of the court below, which interpreted "person who has continuously worked," in determining the persons entitled to the January 1990 long-service allowance, as meaning not a person who actually provided labor but a person who continuously maintained employee status, cannot be sustained in this respect.
However, with respect to the January 1992 long-service allowance, as noted above, the requirement of "person who has continuously worked" under the Operating Regulations in effect at the time of its payment had been changed to the requirement of "person who is paid base pay (including a person who is paid only a part of the base pay)," and therefore the above interpretation can no longer be maintained; under this provision, a person should be deemed subject to payment of the long-service allowance so long as he or she is paid even a portion of the base pay, regardless of whether he or she actually provided labor. Although the court below's reasoning somewhat confused the provisions before and after the amendment, its conclusion, reaching the same result, is justified, and there is no error of misunderstanding the legal principles concerning the interpretation of the Operating Regulations. Therefore, the ground of appeal contesting this part of the judgment below cannot be accepted.
As to Ground 2
The long-service allowance under the Defendant Cooperative's Operating Regulations is paid to all persons who satisfy the payment requirements of Article 106, Paragraph 1 of the Operating Regulations, regardless of whether the employee used annual or monthly leave, and, in light of the fact that Paragraph 2 of the same Article provides for a reduced payment of the long-service allowance, in the manner prescribed therein, to persons who have been subjected to disciplinary action of salary reduction or more severe, or to suspension from position, the purpose, nature, and payment requirements of the long-service allowance under the Operating Regulations are entirely different from those of the annual/monthly leave allowance under the Labor Standards Act (근로기준법). Accordingly, if an employee, having acquired the right to annual or monthly leave under the Labor Standards Act, continued to work without using such leave within the statutory period, the Defendant Cooperative is obligated to pay the annual/monthly leave allowance under the Labor Standards Act regardless of whether the employee received the long-service allowance under the Operating Regulations (see Supreme Court Decision 94Da18553, decided June 29, 1995). Furthermore, according to the Defendant Cooperative's Operating Regulations, Article 106, Paragraph 3 originally provided that the annual/monthly leave allowance payable under Articles 47 and 48 of the Labor Standards Act shall be replaced by the said allowance, but this provision was deleted by the amendment of April 19, 1990.
In light of the foregoing, the determination of the court below, that since the aforementioned Article 106, Paragraph 3 of the pre-amendment Operating Regulations is without effect, the Defendant must pay the annual/monthly leave allowance in accordance with the Labor Standards Act, is justified, and the ground of appeal contesting this point is without merit.
Therefore, among the Defendant's appeals against Plaintiff 2, Plaintiff 7, Plaintiff 9, Plaintiff 18, Plaintiff 26, and Plaintiff 28, the portion of the appeal exceeding the portion of the judgment below rendered in favor of said Plaintiffs is unlawful and is hereby dismissed; among the portions of the judgment below in which the Defendant lost, the portion ordering payment of the January 1990 long-service allowance to the remaining Plaintiffs excluding Plaintiff 4 and Plaintiff 29 is reversed and remanded to the court below; the Plaintiffs' appeals and the remainder of the Defendant's appeal are all without merit and are hereby dismissed; and the costs of appeal with respect to the portions dismissed or rejected shall be borne by the respective losing parties. The Justices participating in this case are unanimous in this opinion, and it is so ordered as stated in the Order.
Justice Choi Jong-yeong (Presiding Justice), Jeong Gwi-ho, Lee Don-hui (Justice in Charge), Lee Im-su