[Plaintiffs, Appellants]
[Defendant, Appellee] Samcheok Coal Mine Development Co., Ltd. (삼척탄좌개발주식회사), Attorney Jeong Seong-heum, Counsel for the Defendant
[Judgment Below] Seoul High Court Decision 92Na26484, rendered December 17, 1992
[Order]
All appeals are dismissed.
The costs of the appeal shall be borne by the Plaintiffs.
[Reasoning]
The grounds of appeal (including the supplemental grounds of appeal brief submitted after the filing period had expired, to the extent it supplements the grounds of appeal) are examined as follows.
1. As to Ground No. 1
According to the reasoning of the judgment below, the court below, based on the evidence it adopted, found the fact that the remaining Plaintiffs, excluding Plaintiff 7, Plaintiff 8, and Plaintiff 9, joined the Defendant company and retired from the Defendant company on the dates stated in its judgment, and the fact that Plaintiff 7, Plaintiff 8, and Plaintiff 9 retired midway from the Defendant company, and then calculated the Plaintiffs' periods of continuous service. The court below further found that during the three months prior to retirement, the Plaintiffs received the applicable basic pay and various allowances, including underground entry allowance, technical allowance, seniority allowance, position allowance, holiday allowance, overtime allowance, weekly holiday allowance, monthly allowance, bonus, and annual leave allowance, and that, pursuant to the Defendant company's collective bargaining agreement and the agreements made thereunder, the Plaintiffs also received company housing allowance, coal briquette allowance, welfare benefits (welfare benefits for New Year's Day, Lunar New Year's Day, and Chuseok, kimchi preparation subsidy, summer vacation allowance), and lunch allowance. The court below also found that from the end of 1981 to the end of 1991, the Defendant company, on the grounds stated in its judgment, paid to the Plaintiffs, who are its employees, at the end of each year, as a matter of grace, monies under various names such as production increase celebration bonus, productivity improvement celebration bonus, labor-management trust building encouragement bonus, labor-management trust restoration encouragement bonus, operation encouragement bonus, and the like, and that the payment targets, payment conditions, and the like for each of these monies were not fixed in the collective bargaining agreement or the rules of employment, and that the payment standards and payment titles thereof were not predetermined either. On this basis, the court below excluded each of these monies from the total amount of wages that forms the basis for calculating retirement allowances, on the ground that these monies were not paid regularly and uniformly as consideration for labor, but were paid as a matter of grace and on a temporary basis under different names depending on the circumstances at the end of each year.
Upon examining and comparing the record, in light of the motive and circumstances of payment of each of the above monies, the fact that the grounds for payment were not predetermined and the Defendant company arbitrarily determined the payment conditions, including the payment targets and payment amounts, and the actual state of such payments, it cannot be said that the above-mentioned celebration bonuses, encouragement bonuses, and the like, as found by the court below, constitute wages that the Defendant company was obligated to pay to employees by custom, or wages for which the obligation to pay arose by agreement between labor and management. Therefore, the judgment below, which is to the same effect, is justified, and there is no error of law due to misunderstanding of the legal principles concerning the calculation of average wages or due to a misapprehension of facts resulting from a violation of the rules of evidence, as argued in the grounds of appeal.
This ground of appeal is without merit.
2. As to Ground No. 2
The average wage that forms the basis for calculating a retirement allowance means the amount obtained by dividing the total amount of wages paid as consideration for labor to a retiring employee during the three months prior to the date of retirement by the total number of days in that period. Therefore, even if an employee, having worked without absence or having attended 90% or more of the working days in the year preceding the year of retirement, thereby became entitled to annual paid leave under Article 48 of the Labor Standards Act (근로기준법), failed to use such leave, and thus a right to claim annual leave allowance for that period arose, such annual leave allowance is consideration for labor performed during the one-year period of the year preceding the year of retirement, not consideration for labor performed during the year of retirement itself. Accordingly, it is the established precedent of this Court that only the portion of the annual leave allowance corresponding to the part of the one-year period of full attendance or 90% or more attendance, which formed the basis of the right to annual leave, that falls within the three months prior to the date of retirement, is to be included in the total amount of wages serving as the basis for calculating the average wage (see this Court's Decisions 90Da24496, delivered December 21, 1990; 91Da14437, delivered August 13, 1991; 91Da5587, delivered April 14, 1992, etc.).
The court below, in the same vein, included in the total amount of wages forming the basis for calculating the average wage only the portion of the annual leave allowance that constitutes consideration for labor performed during the three months prior to the date of retirement, on the ground that the portion of the one-year period of full attendance or 90% or more attendance, which formed the basis of the right to annual leave, falling within the three months prior to the date of retirement, was included therein; this measure is justified. The fact that the annual leave allowance was included in the total amount of wages serving as the basis for calculating the retirement allowance in the retirement allowance payment records for the Plaintiffs, as argued in the grounds of appeal, does not lead to the conclusion that there was an agreement between labor and management to include 3/12 of the annual leave allowance received by the Plaintiffs during the one year prior to retirement in the wages forming the basis for calculating the retirement allowance, regardless of whether or not it constituted consideration for labor performed during the three months prior to retirement. Therefore, there is no error of law in the judgment below due to insufficient deliberation or a misapprehension of facts resulting from a violation of the rules of evidence, as argued in the grounds of appeal.
This ground of appeal is without merit.
3. Therefore, all appeals are dismissed, and the costs of the appeal are to be borne by the losing party. This judgment is rendered as stated in the Order by the unanimous opinion of the participating Justices.
Justice Jeong Gwi-ho (Presiding Justice), Bae Man-un, Kim Ju-han (Justice in Charge), Kim Seok-su