[Plaintiff, Appellee] Kim Yeong-bok
[Defendant, Appellant] Korea Plywood Co., Ltd., Attorney Yoo Chang-hyeon, Counsel for the Defendant
[Judgment Below] Jeonju District Court, Judgment of May 1, 1980, Case No. 80Na32
[Order]
The judgment below is reversed, and the case is remanded to the Panel Division of the Jeonju District Court.
[Reasoning]
The Court examines the grounds of appeal submitted by the Defendant's litigation counsel.
According to the reasoning of the judgment below, the court below found that the Plaintiff joined the Defendant company on May 7, 1963 and voluntarily retired on January 9, 1978, and that the Defendant company had paid the Plaintiff, during the one year prior to his retirement, a bonus equivalent to 380 percent of his monthly wage. The court below held that the said bonus should be regarded as a type of wage paid by the Defendant company to the Plaintiff, and that even though Article 75 of the Defendant company's Employment Rules (취업규칙) and Article 29 of its Remuneration Regulations (보수규정), which were in effect at the time of the Plaintiff's retirement, provided that the said bonus was to be excluded from the materials for calculating average wage, and even though excluding the bonus from the basis for calculating retirement allowance would still result in an amount exceeding the minimum threshold prescribed under Article 28 of the Labor Standards Act (근로기준법), the said bonus could not be excluded from the basis for calculating the retirement allowance. The court below then held that it was erroneous for the Defendant company not to have included the said bonus as part of the basis for calculating the retirement allowance paid to the Plaintiff at the time of his retirement, and accordingly held that the Plaintiff's claim in this case seeking additional payment of the retirement allowance corresponding to the said bonus portion was justified.
However, according to Article 66 of the Defendant company's Employment Rules in effect at the time of the Plaintiff's retirement, the types of pay were classified as (1) wages, (2) bonuses, (3) retirement allowance, and (4) other payments made on a temporary basis; and according to Article 67, the types of wages were classified as (1) standard wages (ordinary wages, base pay), consisting of base salary and allowances, and (2) non-standard wages, consisting of overtime work allowance, night work allowance, and holiday work allowance. Article 74 provided for the method of calculating average wage in cases where grounds arise requiring the calculation of average wage under statutes and regulations. Article 75 provided that, in calculating the average wage under the preceding article (Article 74), the total amount of wages shall not include payments made on a temporary basis, bonuses, and gratuitous and irregular payments made in forms other than currency for welfare purposes. Article 84 provided that the retirement allowance shall be the amount obtained by multiplying the average wage at the time of retirement by the payment rate prescribed in that article. Furthermore, according to Article 2 of the Defendant company's Remuneration Regulations, (1) "remuneration" means base salary, performance-based pay, and special allowances; (2) "salary" means the sum of base salary, position allowance, and seniority increment; and (3) "performance-based pay" means bonuses and special bonuses. Article 29 provided that, in calculating the retirement allowance, the retirement allowance shall be the amount obtained by multiplying the average wage amount (excluding performance-based pay and night-duty allowance) by the payment rate prescribed in that article (the same as under Article 84 of the Employment Rules). Thus, it can be seen that, under Article 74 of the Employment Rules and Article 29 of the Remuneration Regulations, bonuses are excluded from the calculation of the average wage amount.
If that is so, it must be said that the court below erred in treating the average wage under the Labor Standards Act and the average wage under the Defendant company's Employment Rules and Remuneration Regulations in effect at the time of retirement as being of the same nature, and in rejecting, without setting forth any reasonable grounds whatsoever, the standard for calculating average wage as provided in the said Employment Rules and Remuneration Regulations, and in determining that bonuses were naturally included therein.
However, Article 28 of the Labor Standards Act, concerning the payment of retirement allowances, provides that an employer shall establish a system to pay a retiring employee a retirement allowance of not less than 30 days' average wage for each year of continuous service. The average wage referred to herein means the average wage as defined in Article 19 of the same Act, and the wages forming the basis for calculating this average wage should be deemed to include the bonus paid by the Defendant company to the Plaintiff in this case. However, Article 28 of the Labor Standards Act is a provision that sets the minimum threshold for the amount of retirement allowance that an employer must pay to a retiring employee. If the amount of retirement allowance calculated for the Plaintiff by the Defendant company, without including the bonus in the basis of calculation pursuant to the said Employment Rules and Remuneration Regulations, exceeds the minimum threshold guaranteed under the Labor Standards Act, then the said Employment Rules, etc., cannot be regarded as unlawful provisions in violation of Article 28 of the Labor Standards Act (see Supreme Court Decision 81Daka137, delivered April 13, 1982; Supreme Court Decisions 78Da2372, 79Da136, delivered February 27, 1979; Supreme Court Decision 76Da891, delivered April 12, 1977; Supreme Court Decision 73Da105, delivered December 24, 1974; Supreme Court Decision 73Da1384, delivered November 13, 1973; and Supreme Court Decision 71Da485, delivered May 11, 1971).
In this case, the court below should have determined whether the amount of the retirement allowance already paid by the Defendant to the Plaintiff at the time of his retirement exceeded the minimum threshold for retirement allowance prescribed under Article 28 of the Labor Standards Act, and if it did exceed that threshold, should have rejected the Plaintiff's claim in this case for additional payment of retirement allowance as unjustified. Nevertheless, the court below, having erred in its interpretation of the Defendant company's Employment Rules and Remuneration Regulations, failed to conduct a full examination of this point, which constitutes an unlawful act affecting the outcome of the judgment. Therefore, the argument on this point is well-founded.
Accordingly, the judgment below is reversed, and the case is remanded to the Panel Division of the Jeonju District Court. This judgment is rendered as stated in the Order by the unanimous opinion of the Justices participating in this case.
Supreme Court Justice Lee Jeong-woo (Presiding Justice), Kim Jung-seo, Kang Woo-young, Shin Jeong-cheol