[Plaintiffs, Appellants] ○○○ and 1 other Plaintiffs' Attorney Lee Hae-jin
[Defendant, Appellee] Dong-Ah Construction Industrial Co., Ltd. Defendant's Attorneys Jeon Sang-seok, Kwon Jong-geun
[Judgment Below]
Seoul High Court Decision 85Na2792 rendered on February 21, 1986
[Order]
All appeals are dismissed.
The costs of the appeals shall be borne by the Plaintiffs.
[Reasoning]
1. Judgment on Ground of Appeal No. 1
According to the reasoning of the judgment below, the court below, upon comprehensive examination of the evidence cited therein, found the following facts: Plaintiff ○○○ joined the Defendant company on May 1, 1971 and worked there, then submitted a letter of resignation on May 25, 1978 and received 2,131,255 won as retirement allowance for his service up to that point; from the following day, he worked as an employee of the Defendant company in Saudi Arabia under a two-year employment contract, and on May 26, 1980 submitted a letter of resignation to the Defendant company and received 2,736,925 won as retirement allowance for that period; he was again issued a personnel appointment order by the Defendant company and worked domestically from the following day, then submitted a letter of resignation on December 28, 1981 and received 1,545,156 won as retirement allowance for his service up to that point; from the following day, he worked in Iraq under a one-year employment contract, and thereafter submitted a letter of resignation to the Defendant company and received 1,904,335 won as retirement allowance for that period; however, the Defendant company did not issue a new appointment order and instead used the aforementioned letter of resignation to treat the said Plaintiff as having voluntarily resigned. The court below also found that Plaintiff ○○○ joined the Defendant company on March 2, 1964 and worked there, then submitted a letter of resignation on June 2, 1980 and received 9,859,049 won as retirement allowance for his service up to that point; from the following day, he worked as an employee of the Defendant company in Saudi Arabia under a one-year employment contract, which was extended for an additional one year until July 13, 1982, at which point he submitted a letter of resignation to the Defendant company and received 4,178,998 won as retirement allowance for that period; however, the Defendant company did not issue a new appointment order and instead used the aforementioned letter of resignation to treat the said Plaintiff as having voluntarily resigned. The court below further found that the Defendant company, in consideration of the working conditions of employees working overseas, paid such employees approximately two to three times the wages of domestic employees of the same rank; that if an overseas-posted employee were to take advantage of this and submit a letter of resignation either during the overseas posting or immediately upon returning to Korea after completing the overseas posting, this would result in the unreasonable outcome of having to pay a retirement allowance two to three times greater than that paid to an employee who retires after the same number of years of domestic service; that in order to remedy this, the Defendant company established and implemented a policy whereby, for employees who wished to work overseas, the company would first have them submit a letter of resignation and receive the full retirement allowance accrued up to that point, then enter into an overseas employment contract and dispatch them to work abroad, and upon completion of the overseas assignment, have them again submit a letter of resignation and receive the retirement allowance for that period, after which they would be reappointed as employees of the Defendant company to continue working, with the understanding that, apart from the matter of retirement allowance, the domestic and overseas periods of service would be combined and treated as continuous service with the Defendant company; and that the Plaintiffs, being fully aware of the Defendant company's aforementioned policy, voluntarily desired to work overseas in accordance with this policy, and accordingly submitted letters of resignation before and after each overseas assignment as described above and received settlement payment of the retirement allowance accrued up to each such point. Upon review of the record, the above factual findings of the court below are deemed justified, and no error in violation of the rules of evidence resulting in a mistaken finding of fact, as argued in the grounds of appeal, can be found therein.
Furthermore, where an employee, while in fact continuing to work for the same employer, is treated as having formally resigned in order to take on, for a certain period, duties for which a particularly high wage is paid, and is then formally reappointed, the declaration of intent to resign would constitute a false declaration made by mutual agreement (통정허위표시) and would therefore be void. However, where, due to such reasons, an employee formally resigns and, of his own free will, receives an interim settlement and actual payment of the retirement allowance accrued up to that point, and agrees that when he actually retires in the future, the retirement allowance will be calculated based solely on the period of service following such formal resignation, such an agreement cannot be deemed void so long as the sum of the retirement allowance received through the interim settlement under such agreement and the retirement allowance to be received upon actual retirement is not less than the amount of retirement allowance that would have been received had the employee continued in his previous position without such formal resignation for the purpose of receiving the particularly high wage, and then retired. The court below, based on the above findings of fact, determined that, because the Defendant company's method of calculating retirement allowance was not progressive according to years of service but fixed at 30 days' average wage at the time of retirement per year of service, the sum of the retirement allowances received by the Plaintiffs through interim settlement each time they submitted a formal letter of resignation for the purpose of overseas assignment as described above was not less than the retirement allowance they would have received had they continued working only domestically without submitting such formal letters of resignation and then retired; and accordingly held that the Plaintiffs' retirement allowance claims were all extinguished by the Defendant company's payment, through settlement, of the retirement allowance accrued up to each point of the Plaintiffs' formal resignation. This determination is in accordance with the view set forth above and is justified, and no error such as inconsistency in reasoning or violation of statutes concerning the calculation of retirement allowance, as argued in the grounds of appeal, can be found therein. Accordingly, this ground of appeal is without merit.
2. Judgment on Ground of Appeal No. 2
According to the reasoning of the judgment below, the court below found, based on the evidence cited therein, that Plaintiff ○○○, during his period of service in Iraq, held the position of Administration Section Chief, and Plaintiff ○○○, during his period of service in Saudi Arabia, held the position of Deputy Manager of Materials, and that each, without being subject to strict control over attendance and departure, assisted the site manager in supervising the Defendant company's employees and managing overall operations, or was responsible for the procurement and management of materials. Based on these findings, the court below determined that the Plaintiffs, during the above periods, were persons holding supervisory or managerial positions as provided in Article 49, Item 4 of the Labor Standards Act (근로기준법) and Article 36 of its Enforcement Decree, and that accordingly, the provision of Article 46 of the same Act concerning overtime, night, and holiday work did not apply to them, and on this ground rejected the Plaintiffs' claims for overtime allowances. Upon review of the record, the above factual findings and determination of the court below are deemed justified, and no illegality as argued in the grounds of appeal can be found therein. Accordingly, this ground of appeal is without merit.
3. The Plaintiffs also filed an appeal with respect to the portion concerning the claim for annual leave allowance; however, as no grounds of appeal whatsoever have been submitted with respect to this portion, the appeal as to this portion is without merit.
4. Accordingly, all of the Plaintiffs' appeals are dismissed, and the costs of the appeals are to be borne by the Plaintiffs, the losing parties. It is so decided as set forth in the Order, by the unanimous opinion of the Justices participating in the decision.
Justice Park Woo-dong (Presiding Justice), Kim Hyung-ki, Yoon Kwan