[Plaintiff, Appellee] Plaintiff
[Defendant, Appellant] Hosok Educational Foundation
[Judgment Below] Gwangju High Court Decision 80Na216 delivered on January 29, 1981
[Order]
The appeal is dismissed.
The costs of the appeal shall be borne by the Defendant.
[Reasoning]
The grounds of appeal are examined.
1. If an employee retired after the enforcement of the Labor Standards Act (근로기준법), the calculation of the continuous years of service prescribed in Article 28 of the said Act shall be determined by aggregating the periods before and after the enforcement of the said Act (see this Court's Decision 66Da576 delivered on May 17, 1966), and the years of service before the enforcement of the said Act shall not be excluded. In this sense, the lower court's measure of aggregating the years of service even under the Labor Standards Act before its amendment, in calculating the Plaintiff's years of service, is justified, and the argument in the grounds of appeal taking a different view cannot be accepted.
2. According to the record, it is true, as argued in the grounds of appeal, that the Plaintiff did not receive the diligence allowance (정근수당) during the three months retroactive from May 31, 1979, the date of the Plaintiff's retirement; however, the said diligence allowance was, at the time, paid once a year, and it is undisputed between the parties that the Plaintiff received it on January 17, 1979, and the lower court lawfully found that the said diligence allowance is a kind of wage paid as consideration for labor. As stated above, amounts which are consideration for labor but are paid or have been paid separately in addition to the monthly salary shall also be deemed to constitute wages. Therefore, regardless of the number of times or method of lump-sum or installment payment of the diligence allowance, the result of the calculation of the average wage for the purpose of computing retirement allowances should not differ; rather, it is proper to include, in the calculation of the average wage which serves as the basis for computing the employee's retirement allowance, only the amount equivalent to three months obtained by dividing the annual amount by twelve, regardless of whether the employee actually received such amount during the three months preceding retirement (see this Court's Decision 77Da1321 delivered on February 14, 1978). The lower court's measure, taken from this viewpoint, is justified, and the argument in the grounds of appeal criticizing the lower court's determination from a different viewpoint is without merit.
Therefore, the appeal is dismissed, and the costs of the appeal are to be borne by the losing party. The Justices participating in this decision are unanimous in their opinion, and the judgment is rendered as stated in the Order.
Justice Jeon Sang-seok (Presiding Justice), Lee Il-gyu, Lee Seong-ryeol, Lee Hoi-chang