[Plaintiffs, Appellants] Plaintiff 1 and 6 others; Litigation Counsel for the Plaintiffs: Attorney Kang Dae-heon
[Defendant, Appellee] Munhwa Broadcasting Corporation; Litigation Counsel: Attorney Kwon Jong-geun
[Judgment Below] Seoul High Court Judgment 81Na3102, rendered February 2, 1982
[Order]
The part of the judgment below concerning the plaintiffs' losing portion is reversed, and this part of the case is remanded to the Seoul High Court.
[Reasoning]
The grounds of appeal are examined.
1. First, the Court addresses the claim regarding the monthly pro-rated payment of annual leave allowance and its inclusion in the calculation of average wages.
Article 48 of the Labor Standards Act (근로기준법) provides in Paragraph 1 that an employer shall grant 8 days of paid leave to an employee who has attended work without absence for one year, and 3 days of paid leave to an employee who has attended work for 90% or more of the working days. Paragraph 2 provides that an employer shall, for an employee who has been continuously employed for 2 years or more, grant paid leave that adds one day to the leave under Paragraph 1 for each year of continuous service exceeding one year; provided, however, that where the total number of leave days exceeds 20 days, the employer may pay ordinary wages for the days in excess thereof instead of granting paid leave for such excess days. Paragraph 3 provides that the paid leave under Paragraphs 1 and 2 shall be granted at a time requested by the employee, and that for the period of such leave, the employer shall pay the ordinary wage or average wage as prescribed by the rules of employment or otherwise; provided, however, that where granting paid leave at the time requested by the employee would seriously impede the operation of the business, the employer may change the timing thereof. Given these provisions, it is clear that so-called "annual leave allowance" can only be paid to an employee who has worked continuously for one year and has either attended work without absence or attended 90% or more of the working days during that year. Absent any special agreement to the contrary, annual leave pertains to one year of work, and the annual leave allowance likewise becomes fixed only upon completion of one year of work in which the employee attended without absence or attended 90% or more of the working days. Accordingly, it must be construed that annual leave, or annual leave allowance, cannot be granted or paid for work of less than one year.
According to what the court below lawfully established, the Defendant Company set its standard period for payment of annual leave allowance as running from November 1 of each year to October 31 of the following year. Plaintiff 1 and Plaintiff 5 resigned from the Defendant Company on July 15, 1980, and Plaintiff 2, Plaintiff 3, Plaintiff 4, Plaintiff 6, and Plaintiff 7 resigned on July 19, 1980, and the annual leave allowance for the Plaintiffs had already been fully settled based on the Defendant Company's standard period for annual leave allowance payment running from November 1, 1978 to October 31, 1979. Accordingly, measured as of the respective dates on which the Plaintiffs resigned from the Defendant Company, the period during which the Plaintiffs worked did not reach one year. As explained above, the Plaintiffs cannot claim payment of annual leave allowance for this period of work. Therefore, the measure taken by the court below rejecting the Plaintiffs' claim on this point, on this rationale, is justified and contains no error. The argument that annual leave allowance for one year should be paid on a monthly pro-rated basis for work of less than one year and should be included in the calculation of average wages is merely the Plaintiffs' own idiosyncratic view and cannot be accepted.
2. Next, the Court addresses the portion concerning the bonus.
According to the reasoning of the judgment below, the court below, upon comprehensive consideration of the evidence it cited, found the following facts: Under the Defendant Company's bonus payment regulations, the rate and date of bonus payment are determined by the board of directors in consideration of the company's ordinary business conditions, and each bonus payment is made based on the basic salary, differentiated according to a fixed rate (100% to 25% of basic salary) determined by type of work and length of service. In accordance with these bonus payment regulations, the Defendant Company's board of directors resolved, around mid-March 1980, to revise the retirement allowance calculation standard so that, whereas employees had previously received a bonus equivalent to 400% of basic salary each year, from April 1 of that year they would receive a bonus equivalent to 500% of basic salary, and bonuses were paid to employees accordingly thereafter. Meanwhile, the Defendant Company had originally been established under the trade name "Korea Munhwa Broadcasting Corporation," primarily conducting radio and television broadcasting business. On November 1, 1974, it merged with and absorbed Kyunghyang Shinmun Co., Ltd., whose main business was the publication and sale of newspapers and magazines, and Munhwa Broadcasting Advertising Co., Ltd., which handled advertising agency business through mass media, and changed its trade name to "Munhwa Broadcasting Kyunghyang Shinmun Co., Ltd." (later changed again to "Munhwa Broadcasting Corporation" on April 1, 1981), thereby greatly expanding its business scale. To celebrate and commemorate this epoch-making new beginning, on November 1, 1976, the second anniversary of the merger, the Defendant Company paid all of its employees 200% of basic salary in the name of a "special bonus commemorating the merger," and thereafter, until 1979, before the Plaintiffs' retirement, paid the same rate of "special merger commemoration bonus" every year on November 1, the merger anniversary date. This special bonus, unlike what is provided under the Defendant Company's bonus payment regulations, was not paid pursuant to a board of directors' resolution but was paid each year through a separate internal approval process at the sole discretion and final approval of the representative director. In granting such approval, the representative director made clear that this special bonus was not being paid pursuant to the Defendant Company's bonus payment regulations, and the payment rate was set differently from what those regulations provided. Furthermore, because the special bonus carried the meaning of commemorating and celebrating the merger, it was paid at the full rate of 200% of the original basic salary even to employees who had been subjected to salary reduction disciplinary measures (contrary to the regulations), and even to employees on overseas training, who would ordinarily receive only 50% of the bonus rate, the full 200% was paid. Based on these findings, the court below further held that the bonus which the Defendant Company was obligated under the labor contract to pay to its employees was limited to the amount equivalent to 500% of basic salary each year, and that the above special bonus, unrelated to the labor contract between the Plaintiffs and the Defendant, the collective bargaining agreement, or internal regulations such as the Defendant Company's wage regulations and bonus payment regulations that set the terms and conditions of employment, was paid by the Defendant Company on a voluntary and gratuitous basis; and that it could not be said that the payment of this special bonus had become such an established practice as to constitute an implicit modification of the terms and conditions of employment. On this basis, the court below held that it could not be regarded as wages to be included in the calculation of average wages.
Although it is not possible to categorically classify so-called bonuses as being in the nature of deferred wages or in the nature of gratuitous, reward-type payments, it must generally be construed that, except where the occasion for payment is uncertain and the payment is made on a one-time basis, bonuses generally have the character of wages paid as consideration for labor. In light of this, the special bonus equivalent to 200% of basic salary, which the court below found the Defendant Company had paid to all employees since 1976, was paid continuously and regularly by the Defendant Company to all employees every November from November 1976 onward at the rate of 200% of basic salary, and therefore must be regarded as having the character of wages constituting consideration for labor. The circumstances found by the court below — namely, that the initial payment of this special bonus originated from the intent to celebrate and commemorate the merger; that it was paid not pursuant to a board resolution but at the sole discretion and final approval of the representative director following internal approval procedures (although the record shows that the Defendant Company's board of directors later resolved to approve payment of this special bonus); that it was paid at the full rate of 200% of original basic salary even to employees subjected to salary reduction disciplinary measures; and that it was paid at the full rate of 200%, rather than the ordinary 50% bonus rate, even to employees on overseas training — do not, by themselves, constitute grounds for concluding that this special bonus lacked the character of wages and was instead a gratuitous benefit.
If so, this special bonus is not to be construed differently, in terms of its character as deferred wages, from the payment equivalent to 500% of basic salary that the Defendant Company originally paid as a bonus, and therefore the amount corresponding to the three months prior to retirement should be included in the average wage that serves as the basis for calculating retirement allowance. Accordingly, the measure taken by the court below, reaching a different conclusion as described above and rejecting the Plaintiffs' claim on the ground that this special bonus is not wages to be included in the calculation of the average wage that serves as the basis for calculating retirement allowance, ultimately contains an error of misapprehending the legal principles concerning bonuses and average wages. Therefore, the ground of appeal on this point is well-founded.
3. Accordingly, the part of the judgment below concerning the Plaintiffs' losing portion is reversed, and in order to have the court below re-examine and re-adjudicate this matter, this part of the case is remanded to the Seoul High Court. It is so decided, by the unanimous opinion of the participating Justices, as stated in the Order.
Justice Lee Il-gyu (Presiding Justice), Lee Seong-ryeol, Jeon Sang-seok, Lee Hoi-chang