[Plaintiffs, Appellee and Appellant] Plaintiff 1 and 1 other (Attorneys for the plaintiffs: Law Firm Yeoneun, Attorney Kwon Du-seop and 1 other)
[Defendant, Appellant and Appellee] ○○○ Co., Ltd. (Attorney for the defendant: Attorney Ju Han-il)
[Intervenor for the Defendant] △△△ Co., Ltd.
[Judgment Below] Seoul High Court Decision 2010Na32278 rendered on January 13, 2012
[Order]
All appeals are dismissed. The costs of appeal shall be borne by each party respectively.
[Reasoning]
The grounds of appeal are examined as follows.
1. As to the Defendant's grounds of appeal
A. As to the first ground of appeal
Under Article 2, Subparagraph 1 of the Act on the Protection, etc. of Dispatched Workers (Act on the Protection, etc. of Dispatched Workers, hereinafter referred to as the "Dispatched Workers Act"), "worker dispatch" means that a dispatching business operator, after employing a worker and while maintaining the employment relationship, has the worker engage in work for a user business operator under the direction and supervision of the user business operator in accordance with the terms of a worker dispatch contract.
Where an original employer causes a worker to perform work for a third party, whether such legal relationship constitutes worker dispatch subject to the Dispatched Workers Act as described above should not be determined by the name or form given to the contract by the parties, but should be determined based on the substance of the employment relationship, considering factors such as: whether the third party directly or indirectly gives binding instructions concerning the performance of the work itself and exercises substantial direction and supervision over the worker; whether the worker can be seen as having been substantially incorporated into the third party's business, such as by being organized into a single working group together with workers belonging to the third party and performing joint work directly with them; whether the original employer independently exercises decision-making authority regarding matters such as the selection of workers to be assigned to the work, the number of workers, education and training, working and rest hours, leave, and monitoring of work attitude; whether the purpose of the contract is fixed as the performance of specifically delineated work, whether the work assigned to the worker is distinguishable from the work of workers belonging to the third party, and whether such work involves specialized skill or expertise; and whether the original employer possesses an independent business organization or facilities necessary to achieve the purpose of the contract (see, e.g., Supreme Court Decision 2010Da93707 rendered on February 26, 2015).
The court below, based on the evidence adopted, found the facts as stated in its reasoning, and then determined, in effect, that although a service subcontract had formally been concluded between the Defendant's Intervenor, which employed the Plaintiffs, and the Defendant, who operates the hotel at issue in this case, in substance, the Intervenor's employees, including the Plaintiffs, performed cleaning and other work at the hotel while intermingled with employees belonging to the Defendant, under the direct direction and supervision of the Defendant, and therefore the Plaintiffs held the status of dispatched workers.
Upon examination of the aforementioned legal principles and the record, the above determination by the court below is justified and may be upheld, and there is no error therein, as alleged in the grounds of appeal, based on a misunderstanding of the legal principles concerning the interpretation of subcontracts, etc.
B. As to the second ground of appeal
The former Dispatched Workers Act (before being amended by Act No. 8076 on December 21, 2006) provided, in the main text of Article 6, Paragraph 3, that "where a user business operator continuously uses a dispatched worker for a period exceeding two years, the user business operator shall be deemed to have employed the dispatched worker from the day following the date on which the two-year period expires" (hereinafter referred to as the "deemed direct employment provision"). This means that where worker dispatch exists and such worker dispatch continues for a period exceeding two years, a direct employment relationship is immediately established between the user business operator and the dispatched worker, and in such a case, absent special circumstances, the employment relationship should be regarded as one without a fixed term (see Supreme Court en banc Decision 2007Du22320 rendered on September 18, 2008).
Furthermore, considering the following: that Article 1 of the Dispatched Workers Act sets forth as its legislative purpose the establishment of standards concerning the working conditions, etc. of dispatched workers, thereby contributing to the stabilization of employment and the enhancement of welfare of dispatched workers, and thus the working conditions of dispatched workers may be regarded as being of no less importance than employment stability; that Article 21 of the Dispatched Workers Act not only provides that dispatched workers shall not be subjected to discriminatory treatment as compared to workers of the same type who perform the same work within the user business operator's business, but also that treating a dispatched worker, who has come to form a direct employment relationship with the user business operator, equally with workers of the user business operator performing the same or similar work accords with the concept of fairness; and that Article 6-2, Paragraph 3, Subparagraph 1 of the amended Dispatched Workers Act also provides that, with respect to the working conditions applicable where a user business operator is required to directly employ a dispatched worker due to having continuously used the dispatched worker for a period exceeding two years, such working conditions shall be governed by "the working conditions prescribed in the rules of employment, etc. applicable to workers of the user business operator who perform the same or similar work as the relevant dispatched worker, where such workers exist" — it is reasonable to hold that the working conditions of a dispatched worker who is deemed to have been directly employed by the user business operator pursuant to the deemed direct employment provision are the same as the working conditions prescribed in the rules of employment, etc. applicable to workers of the user business operator who perform the same or similar work as the relevant dispatched worker, where such workers exist.
Upon examination of the aforementioned legal principles and the record, the determination by the court below, which held, in the same vein, that the deemed direct employment provision applies and that the working conditions of the Plaintiffs, who have thereby come to have a direct employment relationship with the Defendant, are the same as the working conditions prescribed in the rules of employment, etc. applicable to other workers of the Defendant who perform the same or similar work as the Plaintiffs but whose employment period is not fixed, while rejecting the Defendant's argument that special circumstances exist requiring the employment period to be regarded as fixed, is justified, and there is no error therein, as alleged in the grounds of appeal, based on a misunderstanding of the legal principles concerning the effect of the application of the deemed direct employment provision, etc.
C. As to the third ground of appeal
The court below, for the reasons stated in its reasoning, held that the amount to be deducted reflecting Plaintiff 1's interim income after December 1, 2008 and Plaintiff 2's interim income after January 1, 2009 could not be specifically determined and calculated, and therefore did not accept the Defendant's additional argument for deduction of interim income with respect to that portion.
Upon examination of the relevant legal principles and the record, this measure by the court below is justified and may be upheld, and there is no error therein, as alleged in the grounds of appeal, of having omitted judgment in a manner that affected the judgment.
2. As to the Plaintiffs' grounds of appeal
The court below determined that the wage claims arising from the portion accruing more than three years prior to October 24, 2006, the date on which the Plaintiffs filed the instant lawsuit, had already been extinguished by the statute of limitations, and then, citing the circumstances stated in its reasoning, rejected the Plaintiffs' argument that the Defendant's defense of completion of the statute of limitations constituted an abuse of rights contrary to the principle of good faith or violated the principle of estoppel.
Upon examination of the reasoning of the judgment below in light of the relevant legal principles and the record, it cannot be said that there is an error in the above determination by the court below, as alleged in the grounds of appeal, based on a misunderstanding of the legal principles concerning the abuse of the statute of limitations.
The Supreme Court decisions cited in the grounds of appeal concern different factual circumstances and are not appropriate to be invoked in this case.
3. Conclusion
Therefore, all appeals are dismissed, and the costs of appeal are to be borne by the respective losing parties. This judgment is rendered as stated in the Order, with the unanimous consent of the participating Justices.
Justice Kim So-young (Presiding Justice), Lee In-bok (Justice in charge), Ko Young-han, Lee Ki-taek