[Order]
The part of the judgment below concerning severance pay that was lost by the Defendant is reversed, and this part of the case is remanded to the Gwangju High Court.
The remainder of the Defendant's appeal is dismissed.
The costs of the appeal relating to the dismissed portion shall be borne by the Defendant.
[Reasoning]
The Defendant's attorney's grounds of appeal are examined.
As to Point 1:
According to the facts lawfully established by the court below, the Defendant company's internal regulations provide that bonus allowances shall be paid according to individual work performance in accordance with the payment standards set by the president, and it has been the practice regarding the payment standards and timing that, twice each year—at the end of June for the first half and at the end of December for the second half—an amount equivalent to 150% to 250% of the ordinary monthly wage has been uniformly paid to all employees each time; and in the first half of 1978, the year in which the Plaintiff retired, an amount equivalent to 250% of the ordinary monthly wage was likewise paid to all employees. Given that a fixed percentage amount has thus been regularly paid as a bonus, such payment, regardless of its designation, must be regarded as having the character of wages paid on a fixed date, and therefore, absent any special provision to the contrary, an employee who retires before the expiration of the bonus payment period must also be paid the bonus corresponding to the number of months already worked (see Supreme Court Decision 81Daka174, decided November 24, 1981). Even though the Defendant company's president, for each payment period, set the recipients of the bonus as those who remained in service as of the last day of each payment period, namely the end of June or the end of December, and issued the payment standards accordingly, such payment standards cannot be regarded as a special provision excluding the payment of the bonus corresponding to the period of service to an employee who retired in the middle of the bonus payment period.
Therefore, the court below's determination that, with respect to the Plaintiff who retired before the bonus payment date, the amount corresponding to the number of months already worked out of the bonus for the half-year period (June installment) in which the Plaintiff's retirement fell should be paid as a bonus is justified, and this ground of appeal is without merit.
As to Point 2:
According to the facts established by the court below, the Plaintiff worked as a daily worker from January 4, 1963 to May 31, 1964, and was then appointed as a regular employee on June 1, 1964, continuing to work until his retirement on May 2, 1978. In such a case, the period combining the period of service as a daily worker and the period of service as a regular employee constitutes the continuous period of service that serves as the basis for calculating severance pay, and this conclusion is not altered merely because the severance pay rate differs between the period served as a daily worker and the period served as a regular employee. Accordingly, the severance pay must be calculated by applying the average wage and severance pay rate applicable to a regular employee at the time of retirement to the entire combined period as described above. The court below's determination to the same effect is justified, and there is no illegality therein of misunderstanding the employment contract concerning the payment of severance pay, as argued in the grounds of appeal.
As to Point 3:
According to the judgment below and the judgment of the court of first instance cited therein, it is clear that the court below found that the bonus to be included in the average wage, which forms the basis for calculating the severance pay in this case, is the bonus that the Plaintiff should have been paid for the three-month period prior to retirement, and held that the entry in Defendant's Exhibit No. 5 (Guidelines on the Operation of Job Allowances and Other Allowances) does not preclude this finding.
However, upon examining the said Defendant's Exhibit No. 5 in the record, it can be seen that the Defendant company's Guidelines on the Operation of Job Allowances and Other Allowances provide that, in calculating the monthly amount used as the basis for severance pay, the bonus to be included shall be 3/12 of the annual bonus already paid. If the severance pay calculated in accordance with the above guidelines consequently exceeds the minimum standard under Article 28 of the Labor Standards Act (근로기준법), then the said guidelines do not violate the Labor Standards Act, and the severance pay in this case should also have been calculated in accordance with the above special provision. Nevertheless, the court below made the above determination while stating that Defendant's Exhibit No. 5 does not preclude its finding. This ultimately constitutes either a failure to fully examine Defendant's Exhibit No. 5 or an error in the legal principles concerning the calculation of severance pay, and such illegality falls under a case where, unless the judgment below is reversed, it would be significantly contrary to justice and equity. Therefore, the ground of appeal to this effect, including this point, is well-founded.
Accordingly, the part of the judgment below concerning severance pay that was lost by the Defendant is reversed, and this part of the case is remanded to the Gwangju High Court for further deliberation. The remainder of the Defendant's appeal is dismissed, and the costs of the appeal relating to that portion shall be borne by the Defendant. This judgment is rendered as stated in the Order by the unanimous opinion of the participating Justices.
Justice Oh Seong-hwan (Presiding Justice), Jeong Tae-gyun, Yun Il-yeong, Kim Deok-ju