[Plaintiff, Appellant, Cross-Appellee]
[Defendant, Appellee, Cross-Appellant] Busan Munhwa Broadcasting Corporation (Attorneys Lee Jae-hu and 1 other, Counsel for Defendant)
[Judgment Below] Busan High Court Judgment 1996. 2. 2., Case No. 95Na641
[Order]
The plaintiff's appeal and the defendant's cross-appeal are both dismissed. The costs of the appeal and the cross-appeal shall each be borne by the respective party.
[Reasoning]
1. As to the plaintiff's grounds of appeal.
A. As to Ground of Appeal No. 1
In order for it to be recognized that, even though a worker's affiliation has changed to a company with a different legal personality, the employment relationship with the former company has not been severed but continues with the other company, in principle there must exist a legal relationship whereby the employment relationship between the former company and the other company is comprehensively succeeded.
According to the record, the following facts may be recognized: the plaintiff joined and worked for the defendant company from April 10, 1968; in accordance with the government's policy of integrating telecommunications services, the defendant company entered into an Agreement on the Entrusted Operation of Broadcasting Transmission and Relay Stations (hereinafter "the Entrustment Agreement") with the non-party Korea Telecommunications Authority (hereinafter "the non-party Authority") on October 30, 1984; under the Entrustment Agreement, the non-party Authority undertook to receive from the defendant company the entrustment of the operation, maintenance and repair of, and security and guard duties for, the entrusted facilities, including the defendant company's broadcasting transmission stations and relay stations, long-distance transmission facilities, and emergency transmission facilities (Articles 3 and 4); the defendant company was to hand over and the non-party Authority to take over the real property, such as land, buildings and structures, and machinery and equipment of the entrusted facilities (Article 9); the non-party Authority was not to use the entrusted facilities for purposes other than their intended purpose or to alter them arbitrarily (Article 10); the contractual rights and obligations concerning property for which the defendant company had entered into a lease agreement with a third party prior to the date of entrustment were not to be entrusted (Article 11); the defendant company was to transfer to the non-party Authority all personnel then working at the broadcasting transmission and relay stations at the time the Agreement was concluded, as well as some planning and management personnel necessary for the operation of the transmission and relay stations, and the non-party Authority was to appoint them as its employees (Article 19); the salaries of the transferred personnel were to be guaranteed, to the maximum extent possible, at the level they had enjoyed while employed by the defendant company, and if a transferred person wished to continue working at the workplace where he was stationed at the time of the transfer, this was to be guaranteed to the maximum extent possible absent special circumstances (Article 20); and the entrustment operation expenses, including direct costs and general administrative expenses required for the non-party Authority to maintain and manage the entrusted facilities, were to be kept at or below the level of the defendant company's own operating expenses, to be settled on a quarterly basis (Article 22). It may further be recognized that the fact that the defendant company's transmission and relay station business was to be transferred to the non-party Authority as described above began to be known as a rumor within the defendant company from around early 1984, and by around July or August of that year had become an established fact; that among the 12 technical staff, including the plaintiff, and the 8 security guards who were subject to transfer under the Entrustment Agreement, the defendant company, on June 5 of that year, exchanged and reassigned one employee who did not wish to go to the non-party Authority, and on October 26 of that year exchanged and reassigned two other employees, in each case substituting employees who wished to go to the non-party Authority; that thereafter, upon conclusion of the Entrustment Agreement, on November 30, 1984 the defendant company issued dismissal orders (a form of restructuring-based layoff) to the personnel to be transferred, citing organizational downsizing, and paid them severance pay; that the plaintiff and the other personnel to be transferred, depending on their respective circumstances, either welcomed or were apprehensive about the transfer to the non-party Authority, but generally accepted, without objection, the situation whereby, pursuant to government policy, the defendant company would no longer operate the business in which they had been engaged and the non-party Authority would instead operate it, raised no objection or opposition to the retirement measures taken by the defendant company, received severance pay, and were newly appointed by the non-party Authority effective December 1, 1984; that thereafter, pursuant to a government decision to restore the entrusted business to its original status, the non-party Authority terminated the entrusted business and returned the facilities and personnel it had taken over to the defendant company, whereupon the plaintiff retired from the non-party Authority on May 31, 1988, received severance pay from the non-party Authority, was reemployed by the defendant company, continued to work, and retired upon reaching the mandatory retirement age on December 5, 1990.
In light of the foregoing, the legal relationship arising from the Entrustment Agreement between the defendant company and the non-party Authority, given that the defendant company continued to retain ownership of the physical facilities being transferred and that the rights and obligations concerning them were not comprehensively succeeded to by the non-party Authority, cannot be considered to constitute a transfer of business (see this Court's Judgments 1994. 1. 25., 92Da23834; 1992. 7. 14., 91Da40276; 1991. 11. 12., 91Da12806, etc.) or a merger of enterprises (see this Court's Judgment 1995. 12. 26., 95Da41659), nor can it be considered to constitute a legal relationship involving comprehensive succession of the employment relationship such as a case where part of an enterprise is separated and made independent (this Court's Judgment 1987. 2. 24., 84Daka1409) or a case where there has been an organizational change or transfer of business between affiliated companies (see this Court's Judgments 1991. 3. 22., 90Da6545; 1997. 6. 27., 96Da49674, etc.).
Furthermore, given that the fact of the transfer to the non-party Authority had already become known within the defendant company several months in advance, affording sufficient time to consider the matter and to decide upon one's own course of action, if the plaintiff, having understood the situation whereby the defendant company was compelled by government policy to entrust part of its business to the non-party Authority, accepted the dismissal measure taken by the defendant company, received severance pay without any objection, and was then newly appointed by the non-party Authority, then even if the retirement from the defendant company and the employment with the non-party Authority were carried out collectively for all the personnel by means of personnel orders issued solely by the defendant company and the non-party Authority, this cannot be regarded as having occurred against the plaintiff's will. Nor could the defendant company have anticipated that the entrusted business would later be restored to it, so that the above measure taken by the defendant company cannot be regarded as having been designed to evade payment of severance pay. Accordingly, it must be held that the employment relationship between the plaintiff and the defendant company was severed by virtue of the above retirement and (re)employment, and even though the plaintiff, due to the subsequent fortuitous circumstance that the business entrusted to the non-party Authority was restored to the defendant company, retired from the non-party Authority and was reappointed by the defendant company, it cannot be said that the employment relationship, once severed, was thereby revived.
Accordingly, the lower court's judgment recognizing and determining, in this case, that the employment relationship between the plaintiff and the defendant company had been severed is justified, and the lower court's statement that continuity of employment can be recognized only where there is identity of the enterprise may be understood to mean, not mere identity of legal personality, but that, in principle, the employment relationship is succeeded where there is identity of the physical facilities and human organization of the enterprise, including its business purpose; understood in that sense, it cannot be said to conflict with the precedents of this Court. Accordingly, it cannot be said that the lower court's judgment violated the precedents of this Court concerning the legal principles on years of continuous service, or that it misapprehended the facts in violation of the rules of evidence, as argued in the grounds of appeal. This argument is without merit.
B. As to Ground of Appeal No. 2
"Workers of the same kind" who are subject to the application of a collective bargaining agreement pursuant to Article 37 of the former Trade Union Act (Nodong Johap Beop) (abolished by Act No. 5244 of December 31, 1996) refers to persons for whom application of the relevant collective agreement is anticipated under the provisions of that agreement (see this Court's Judgments 1997. 4. 25., 95Da4056; 1995. 12. 22., 95Da39618, etc.); accordingly, a person who, under the provisions of the collective agreement, is not eligible to be a union member cannot be said to be a person for whom application of the collective agreement is anticipated, and is therefore not subject to the application of the collective agreement.
In this case, under the collective agreement (Article 6, Item 1) concluded between the defendant company and the defendant company's labor union, an employee holding the position of department head (bujang) or higher may not become a union member, and since the plaintiff worked as a department head at the defendant company from June 1, 1988 until his retirement (Exhibit A No. 6-2), he was not eligible for union membership; accordingly, the plaintiff cannot be considered a person subject to the application of the wage agreement (Exhibit B No. 11, concerning the year 1990) concluded between the defendant company and the labor union pursuant to Article 69 of the collective agreement. (Although the testimony of witness Non-party [name omitted] states that the wage agreement applied to the plaintiff as well, this merely means that the defendant company had, as a matter of practice, applied the various standards set forth in the wage agreement to the plaintiff as well, and does not affect the above conclusion.)
Furthermore, although Article 7, Paragraph 4 of the defendant company's salary regulations provides that "an employee who has worked five days or more in the month concerned and retires voluntarily shall be paid the full salary for that month," a person retiring upon reaching mandatory retirement age is not a person who "retires voluntarily"; moreover, Article 42 of the defendant company's rules of employment provides that "the mandatory retirement age for employees shall be 58 years of age (Paragraph 1)" and that "the date of mandatory retirement shall be December 5 of each year (Paragraph 2)." The fact that the date of mandatory retirement is December 5 means that the ground for mandatory retirement arises at 00:00 on December 5, and since, in calculating average wages, the day on which the ground arises is not to be included (see Article 50 of the rules of employment and this Court's Judgment 1996. 7. 9., 96Nu5469), a person retiring upon reaching mandatory retirement age can work only until December 4 of the month of December; therefore, such a person cannot be considered an employee who "works five days or more in the month (December) in which retirement occurs and then retires," and thus does not fall within the category of employees entitled to receive full pay for the month of retirement. (Nevertheless, if the defendant company has been paying employees retiring upon reaching mandatory retirement age their full pay for the month of retirement, this is merely a voluntary payment made by the defendant company.)
Moreover, this Court's Judgment 1993. 5. 27., 92Da24509, which holds that where a person retires in the middle of a month and nevertheless receives full pay for that month, the entire amount of such pay must be included in the average wage, applies only to cases in which, under the collective agreement or the rules of employment, the employee is entitled to receive full pay for the month even upon retiring in the middle of the month; it does not mean that, even in a case such as the present one, where the employee could not receive such payment under the wage agreement or the salary regulations but the employer nevertheless voluntarily made such payment, the entire amount must still be included.
Accordingly, the lower court's action in rejecting the plaintiff's argument that the entire amount of pay received by the plaintiff in the month of retirement should be included in the average wage, and instead including only the portion corresponding to 4 days thereof, is justified, and it cannot be said that there was any error therein, such as a misapprehension of the legal principles concerning the wage agreement, a misapprehension of facts in violation of the rules of evidence, or an error in interpreting the disposal document that departs from logic and common sense, as argued in the grounds of appeal. This argument, too, is without merit.
2. As to the defendant's grounds of cross-appeal.
According to the record, it is recognized that the defendant company has regularly paid a special bonus of 100% on each anniversary of the company's founding, a special bonus of 50% at Chuseok (the Korean autumn harvest festival), and a physical fitness allowance of 50% once a year; accordingly, the lower court's action in including these in the wages forming the basis for calculating average wages is justified, and it cannot be said that the lower court's judgment contains an error of misapprehension of the legal principles as argued.
Furthermore, the argument that there was a practice of not including the above bonuses and physical fitness allowance in the average wage is an argument first raised by the defendant at this stage of appeal, and cannot constitute a legitimate ground of appeal; nor can it be said that the lower court's failure to examine whether such a practice existed constitutes an error in the lower court's judgment consisting of a failure to exercise the right to elicit clarification or insufficient deliberation. Accordingly, this argument, too, is without merit.
3. Accordingly, the plaintiff's appeal and the defendant's cross-appeal are both dismissed, and the costs of the appeal and the cross-appeal are to be borne by the respective losing party, and it is so decided as set forth in the Order, with the unanimous consent of the Justices involved.
Justice Choi Jong-yeong (Presiding Justice), Lee Don-hui, Lee Im-su (Justice in Charge), Seo Seong