[Plaintiff, Appellant] Plaintiff's Attorney Moon Byung-ho
[Defendant, Appellee] Daewoo Electronics Co., Ltd., Attorney Im Dong-jin and one other, Attorneys for Defendant
[Judgment Below] Incheon District Court, Judgment rendered October 26, 1990, Case No. 89Na5409
[Order]
The appeal is dismissed.
The costs of the appeal shall be borne by the Plaintiff.
[Reasoning]
We examine the grounds of appeal.
(1) According to the reasoning of the judgment below, the court below found as follows: the Plaintiff joined non-party Daehan Electric Wire Co., Ltd. (대한전선주식회사) on June 5, 1970 and worked there; on February 5, 1983, the electronics and electrical business and industrial equipment business divisions of the said non-party company were transferred by business acquisition to the Defendant company, from which time the Plaintiff worked at the Defendant company until his retirement on February 28, 1989; around the time of the said business acquisition, the Plaintiff was given a questionnaire by the Defendant company asking him to decide, as of the time of the business acquisition, whether (i) he would retire from the said non-party company or the Defendant company, receive his retirement allowance, and go through the procedure of re-employment such that his years of continuous service would be calculated from the date of re-employment, or (ii) he would not receive his retirement allowance at that time but would instead, upon his eventual retirement, receive a retirement allowance corresponding to the years of continuous service combining even the period of employment with the non-party company; the Plaintiff chose the former option effective February 28, 1983, and received settlement and payment of the retirement allowance accrued up to that time; and therefore, the court below held that at that time the existing employment contract relationship between the Plaintiff and the Defendant company was validly terminated, and that the starting point for calculating the Plaintiff's years of continuous service at the Defendant company was March 1, 1983. The above determination by the court below is justified, and it cannot be said that there was an error of law due to a misunderstanding of the legal principles concerning continuity of employment under the Labor Standards Act (근로기준법). Therefore, this ground of appeal is without merit.
(2) The Plaintiff argued that the Defendant company had, up until 1988, paid retirement allowances to retiring employees by aggregating the periods of employment at the non-party company and at the Defendant company regardless of whether they had received a retirement allowance in 1983, and that this had become a practice binding upon the Defendant company; and that the Defendant company's measure of not aggregating the Plaintiff's period of employment at the non-party company, applied uniquely to the Plaintiff, was contrary to the above practice and also violated the principle of good faith. The court below denied the existence of such a practice and rejected this argument. Upon examination of the record, the above measure taken by the court below is acceptable, and the ground of appeal criticizing it by asserting an independent view cannot be accepted.
(3) Even if there was no agreement between the non-party company and the labor union of the non-party company regarding the matter of retirement allowance payment, as noted above, the Plaintiff's voluntary retirement as of February 28, 1983 remains valid all the same, and thus this has no effect on the outcome of the judgment. Therefore, the ground of appeal arguing that, with respect to the matter of retirement allowance payment for employees transferred from the non-party company to the Defendant company, an agreement existed only between the Defendant company and the Defendant company's labor union, while there was no agreement between the non-party company and the non-party company's labor union, and that consequently there was no agreement between labor and management regarding the retirement allowance payment issue in this case, cannot be accepted either.
(4) Therefore, the appeal is 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 Lee Hoi-chang (Presiding Justice), Bae Man-woon, Lee Jae-sung, Kim Seok-su