[Plaintiffs, Appellees] Plaintiff 1 and 9 others
[Defendant, Appellant] Daehan Yeoup Co., Ltd. (대한염업주식회사), Litigation Representative: Daejong Law Firm (법무법인 대종종합법률사무소), Attorneys in Charge Jang Dae-yeong and 3 others
[Judgment of the Lower Court] Seoul High Court Judgment 89Na34850, rendered June 20, 1990
[Order]
The appeal is dismissed.
The costs of the appeal shall be borne by the Defendant.
[Reasoning]
The grounds of appeal are examined.
As to Ground 1
1. The fact-finding of the court below can be accepted, and it cannot be said that there was an error in violation of the rules of evidence.
2. According to the reasoning of the judgment below, the court below found as follows: the Defendant company (hereinafter referred to as "the Defendant" or "the Company") provided, under its Rules of Employment and Collective Agreement, one day of paid leave per month to employees who had perfect attendance on the regular monthly working days, and annual paid leave to those who had perfect attendance for the year or attended 90% or more of the working days, and that employees could either not use such leave and accumulate it, or use it in installments; and where an employee retired without having used accumulated leave due to the Company's business circumstances, the Company agreed to pay ordinary wages as monthly and annual leave allowances; the Company also provided paid holidays on certain designated days not only to non-field employees but also to field employees; furthermore, Article 18, Paragraph 5 of the Defendant's Rules of Employment applies the working conditions set forth in Article 49, Items 2 and 3 of the Labor Standards Act (근로기준법) to field employees among the Company's employees, and while Article 33, Paragraph 1 excludes the application of the provision on holiday work allowance (Article 31), which provides that an employee who works on a holiday shall be paid an amount equal to 150/100 of the ordinary wage, it does not exclude the application of the provisions on monthly and annual leave allowances. The court below determined that, even if the Defendant is a company engaged in fisheries business under Article 49, Item 2 of the Labor Standards Act, and thus Articles 46 and 47 of the same Act concerning holiday work and monthly paid leave allowances do not apply, since the Defendant itself established provisions on the payment of monthly paid leave allowances in its own Rules of Employment or Collective Agreement, the right to claim monthly leave allowances as set forth in the Rules of Employment or Collective Agreement is recognized for the Defendant's field employees as well, regardless of the above provisions of the Labor Standards Act. Upon examination of the record, the above determination of the court below is justified, and it cannot be said that there was an error, as argued in the grounds of appeal, in misunderstanding the legal principles concerning the exclusion of monthly leave work allowances for field employees. (See this Court's Judgment 89Daka15939, rendered November 27, 1990)
Moreover, even if Article 8 of the Collective Agreement contains the provision alleged in the grounds of appeal, this does not warrant a different conclusion.
3. If Plaintiff 1 was, as found by the court below, in charge of production and quality control at the Defendant's Sorae Branch (Grade 3, Class A, Step 3), the determination of the court below that he cannot be regarded as a field employee is also justified.
4. Furthermore, it cannot be said that the court below's finding that the Plaintiffs other than Plaintiff 9 (the meaning of "Plaintiffs" being the same as in the judgment below) had perfect attendance for the prescribed working days and accumulated leave, and its use of this as the basis for calculating average wages or retirement allowances, was unlawful, or that it found facts without evidentiary basis.
5. Therefore, the argument made from the opposing position is without merit.
As to Ground 2
According to the facts found by the court below, the Defendant agreed to pay allowances at the rate of ordinary wages where an employee retired without having used accumulated leave (according to the Defendant company's Collective Agreement and Rules of Employment, accumulated leave may only be used within the relevant year, and where it is not used before the expiration of the accumulation period, ordinary wages shall be paid for the number of days of accumulated leave). Therefore, it was also justified for the court below to calculate the retirement allowance by including the unpaid monthly leave work allowances referred to by the court below when calculating the average wage. The argument, which criticizes the judgment of the court below based on facts different from those found by the court below, is without merit.
As to Ground 3
On May 1, 1972, the Defendant amended the retirement allowance regulations, which had previously provided for payment of retirement allowances at a progressive rate proportional to the length of service, and established new Employee Remuneration Regulations providing for payment of 30 days' worth of average wages per year of service; the Defendant obtained the Plaintiffs' resignation letters in a manner intended to secure their consent, and as a follow-up measure, the Defendant company paid, and the Plaintiffs received, retirement allowances for the period from each Plaintiff's date of hire to the date of submission of the resignation letter. Even if there was agreement on the above amendment of the retirement allowance payment regulations under the Collective Agreement as well, the determination of the court below—that for the period of service up to April 30, 1972, retirement allowances should be calculated according to the progressive payment rate under the former retirement allowance payment regulations, and for the period of service from May 1 of that year to the date of each retirement, retirement allowances should be calculated according to the payment rate under the Employee Remuneration Regulations—is justified. In this regard, even if the Defendant obtained from the Plaintiffs the waiver documents and resignation letters referred to in the grounds of appeal, and the Defendant company paid, based on the average wage at that time, amounts calculated at the progressive rate according to the period of service under the former retirement allowance payment regulations for the period from each Plaintiff's date of hire to April 30, 1972, as retirement allowances, since the Plaintiffs did not actually retire, the employment relationship must be regarded as having continued, and the measure of the court below in calculating the retirement allowance based on the average wage as of the time of actual retirement is acceptable, and it cannot be said that there was an error, as argued in the grounds of appeal, in misunderstanding the legal principles concerning the payment of retirement allowances.
Furthermore, in the absence of separate transitional provisions at the time of such amendment of the retirement allowance payment regulations, it cannot be held that the Employee Remuneration Regulations, having been unfavorably amended, are naturally applied retroactively to the previous period of service as well. (See the above judgment) Therefore, the argument made from the opposing position is also without merit.
As to Ground 4
In calculating the retirement allowance of the deceased Nonparty, the court below, in Appendix List 5 (Retirement Allowance Calculation Table) attached to the judgment below, found that he had served for 13 years and 2 months from May 1, 1972, to July 5, 1985, but in the calculation details column calculated it as 30 × (13 + 10/12), treating it as 13 years and 10 months; this should be regarded not so much as an error in misunderstanding the legal principles for calculating the number of days for retirement allowance payment, but rather as a computational error in the judgment as provided in Article 197, Paragraph 1 of the Civil Procedure Act (민사소송법). Therefore, this argument is also without merit.
Accordingly, 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.