[Plaintiff, Appellant]
[Defendant, Appellee] National Agricultural Cooperative Federation (농업협동조합중앙회) (Litigation Representative: Attorney Lee Ki-chang)
[Judgment Below] Seoul District Court Decision 94Na23950 rendered on May 25, 1995
[Order]
The appeal is dismissed. The costs of the appeal shall be borne by the Plaintiff.
[Reasoning]
The grounds of appeal are examined.
1. Where, within the same enterprise, an employee submits a letter of resignation, etc. to the employer based on his or her own free will in accordance with his or her own necessity or judgment, and the prescribed retirement allowance is thereupon settled and paid by the enterprise concerned, such submission of a letter of resignation, etc. cannot be regarded as having been made unavoidably in accordance with the employer's unilateral management policy or as being merely a formality, and thus the employment relationship between the enterprise concerned and the employee is deemed to have been effectively severed at that point. In such a case, even if the employee, upon having his or her prior service record recognized by the enterprise concerned, is immediately re-employed and continues to work until final retirement, the number of years of continuous service, which serves as the basis for calculating the retirement allowance, must be calculated from the date of re-employment, and the prior period of service should not be aggregated therewith (see Supreme Court Decisions 90Da20398 rendered on May 28, 1991; 92Da2295 rendered on May 22, 1992; 92Da17754 rendered on September 14, 1992; 91Da31753 rendered on November 24, 1992; 96Da12535 rendered on July 9, 1996, etc.).
2. Upon examining the instant case in light of the record, the following facts may be recognized: The Plaintiff was employed on November 20, 1969, as a daily-wage laborer (referred to by both parties as "il-go-jik") of the non-party Uljin-gun Agricultural Cooperative (before the Agricultural Cooperatives Act (농업협동조합법) was amended by Act No. 3300 on December 31, 1980, the said cooperative possessed a separate legal personality and was a member cooperative of the Defendant, receiving guidance, supervision, and audit with respect to its business from the Defendant; however, upon the said amended Act taking effect from January 1, 1981, pursuant to Article 2 of the Addenda to the said Act, the legal personality of the said cooperative was extinguished, and the Defendant succeeded to all rights and obligations of the said cooperative, and the property and business of the said cooperative also came to vest in the Defendant). Due to an amendment of the organizational regulations of the county agricultural cooperatives, the Defendant established, effective from July 1, 1974, a new "special position" category distinct from regular staff, with different appointment procedures and hiring standards, whose duties were limited to specific fields such as clerical assistants, salespersons, warehouse managers, and women's guidance officers, and which was subject to considerably different terms regarding mandatory retirement age and the number of days of retirement allowance payable based on continuous service. For this special position category, the Defendant enacted and enforced special internal regulations (the "Special Position Internal Regulations") governing working conditions, etc., separate from the Service Regulations, Staff Salary Regulations, and Staff Retirement Benefits and Disaster Compensation Regulations applicable to regular staff. The Special Position Internal Regulations established a system of "position conversion" (환직) whereby a special-position employee could convert to a Grade 4 regular staff position, to be effected either through a position-conversion examination or a Grade 4 new-hire examination, and provided that upon such conversion, the special-position employee would be treated as newly hired as a Grade 4 employee. Meanwhile, whether a special-position employee applied for the position-conversion examination, etc. was not compelled by the policy of the Defendant or the cooperative concerned, but was left to the free choice of the individual special-position employee concerned; those among the eligible applicants who did not apply, or who failed the examination, remained in their special positions. The Plaintiff worked as a salesperson in a special position at the said cooperative from July 20, 1974. Subsequently, with a view to boosting the morale of special-position employees affiliated with county agricultural cooperatives, etc., the Defendant issued a policy directive to its provincial branch offices to conduct, as of April 30, 1979, a position-conversion examination open to employees who had served in special positions for two years or more, for conversion to Grade 4 regular staff positions, which offered more favorable working conditions than special positions. When the Defendant's Gyeongbuk Provincial Branch accordingly conducted the position-conversion examination on May 20 of the same year, the Plaintiff voluntarily applied and passed, and was thereupon newly hired and converted to a Grade 4 regular staff position at the Uljin-gun Agricultural Cooperative, receiving from the said cooperative around that time the sum of KRW 701,715 as a retirement allowance corresponding to his period of service in the special position. It may also be recognized that, at the time the position-conversion examination was conducted, unlike for regular staff, no retirement benefit reserve fund had been accumulated for special-position employees. Given these facts, inasmuch as the Plaintiff, while working in a special position, voluntarily applied for and passed the position-conversion examination in order to convert to the more favorable Grade 4 regular staff position, was newly hired as a Grade 4 regular staff employee, and was even paid the retirement allowance corresponding to his period of service in the special position, the Plaintiff's prior employment relationship with the said cooperative must be deemed to have been severed at that point. The outcome is not altered by the circumstances alleged in the grounds of appeal—namely, that the Defendant, in calculating the annual/monthly leave compensation for the Plaintiff after his conversion, aggregated his period of service in the special position; that the Defendant failed to pay retirement allowance for the Plaintiff's period of service as a daily-wage laborer at the time of his conversion, only belatedly paying an amount calculated based on the Plaintiff's average wage at the time of his mandatory retirement; that the Defendant continued to use the Plaintiff's prior personnel record card from his time as a special-position employee even after his conversion; and that the Plaintiff did not submit a letter of resignation at the time of his conversion. Furthermore, Article 19(2) of the Special Position Internal Regulations, cited in the grounds of appeal, which provides that where an employee newly hired as a Grade 4 employee upon conversion is later promoted to a Grade 3 position, the period served in the special position shall be converted at 80% and recognized as service in the Grade 4 position—rather supports the conclusion that, in principle, the employment relationship during the period of service in a special position is not succeeded to by an employee who converts to a regular position.
Accordingly, the factual findings and judgment of the court below, being to the same effect, are justified, and there is no illegality therein, as alleged in the grounds of appeal, arising from a misapprehension of the legal principles concerning the period of continuous service serving as the basis for calculating retirement allowance, or from a mistake in the assessment of evidence leading to a misapprehension of facts.
Moreover, the remaining grounds of appeal raised by the Plaintiff—namely, (i) that the court should have separately calculated the retirement allowances for the period of service as a daily-wage laborer and special-position employee and for the subsequent period of service as a regular employee, determined whether the sum thereof exceeds the retirement allowance already paid, and ordered payment of the retirement allowance accordingly; and (ii) that, since the Plaintiff held the position of deputy-manager-equivalent at Grade 3, Step 24 at the time of retirement, approximately four years, being 80% of his slightly more than five years of service in the special position, should be recognized as service in the Grade 4 position, resulting in a period of continuous service as a regular employee of 17 years—constitute new factual assertions that were never raised up to the court below, and therefore cannot constitute legitimate grounds of appeal. Furthermore, according to the record, the amount of retirement allowance calculated according to the Plaintiff's own assertion for the period of service as a daily-wage laborer and special-position employee falls far short of the amount the Plaintiff actually received from the Defendant as retirement allowance for the same period, such that this assertion is disadvantageous to the Plaintiff himself and thus cannot be accepted. In addition, Article 19(2) of the Special Position Internal Regulations relied upon in the grounds of appeal concerning the recognition of service records clearly pertains only to the calculation of service record in the case of promotion to Grade 3 by an employee who has converted from a special position to a Grade 4 regular position, and does not pertain to the recognition of service record for the calculation of the number of years of continuous service for purposes of calculating retirement allowance. Therefore, this point of the grounds of appeal is also without merit.
3. Accordingly, the appeal is dismissed, and the costs of the appeal are to be borne by the Plaintiff, the losing party. It is so decided as stated in the Order by the unanimous opinion of the Justices concerned.
Supreme Court Justice Kim Hyeong-seon (Presiding Justice), Park Man-ho, Park Jun-seo (Justice in Charge)