[Plaintiff, Appellant]
[Defendant, Appellee] Wonhyo Passenger Motor Vehicle Co., Ltd., Litigation Representatives: Attorney Choi Seok-bong, Attorney Kim Cheol
[Lower Court Decision]
Seoul High Court, Decision of September 4, 1980, Case No. 79Na3807
[Order]
The appeal is dismissed.
The costs of the appeal shall be borne by the Plaintiff.
[Reasoning]
The grounds of appeal are examined.
Ground 1,
The court below premised its decision as follows: Under Articles 22, and 46 through 48 of the Labor Standards Act (근로기준법), an employer must, at the time of concluding an employment contract, clearly specify the wages, working hours, and other working conditions to the worker, and wages are to be paid consisting of the basic wage plus various allowances for overtime work, night work, holiday work, etc. Therefore, in principle, the basic wage should be determined under the employment contract and the various allowances calculated accordingly and then added together. However, even where a contract provides that a fixed amount, in which the various allowances have already been aggregated in advance without separately determining the basic wage, is to be paid as the monthly salary with the worker's consent, such a contract cannot be deemed invalid if it causes no disadvantage to the worker and is found to be justified in light of all the circumstances.
On this premise, the court below found that although no employment contract specifying the working conditions had been prepared with the Defendant prior to the demand for renewal of the employment contract at issue in this case, in determining the monthly salary amount, the Defendant, taking into account the working hours, form of work, and the nature of the duties as set forth in its findings, decided to pay a monthly salary amount, as set forth in its findings, in which the various allowances had been aggregated in advance, without separately calculating the basic wage and the various allowances; that this caused no disadvantage to the Plaintiff, who therefore consented thereto and received wages accordingly without objection for several years. On the ground that such a method of wage payment cannot be regarded as violating the Labor Standards Act, the court below rejected the Plaintiff's claim in this case for payment of the various allowances, which claim was premised on the assertion that the various allowances were not included in the monthly salary amount received by the Plaintiff up until his dismissal.
Comparing the above reasoning of the court below with the record, the above findings and determinations of the court below are properly acceptable, and there is no illegality therein such as erroneous fact-finding based on the evidence or misunderstanding of the legal principles of the Labor Standards Act.
Ground 2,
According to the reasoning of the judgment below, the court below found, based on the evidence it cited, as follows: On July 27, 1978, an agreement was reached between the Defendant and the Seoul Bus Branch of the National Motor Vehicle Workers' Union, of which the Plaintiff, a dispatcher, was a member, to raise the wages of office staff by 40 percent over the total wage amount of the preceding month, starting from the wages for July of that year. Accordingly, the Defendant set the monthly salary amount of 70,560 won, which the Plaintiff had been receiving as of June 1978, as the basic wage, and, under the same working hours and form of work as before, presented wage terms setting the total monthly salary amount as the sum of that basic wage plus overtime allowance, night work allowance, weekly holiday work allowance, monthly paid holiday allowance, etc., calculated to exceed 40 percent of the aforementioned monthly salary amount (the purport of the findings appears to be that, treating the previous total monthly salary amount of 70,560 won, which was paid on the view that it was the sum of the basic wage and the various allowances, as the base amount, the amount increased by 40 percent or more therefrom would become the total monthly salary amount from the wages for July 1978 onward). When the Defendant demanded conclusion of an employment contract on these terms, the Plaintiff, asserting that his previous wages had been merely payment of the basic wage alone, insisted that the amount increased by 40 percent thereof should be set as the basic wage and that the various allowances corresponding to the increased basic wage should be paid separately, and opposed and refused to conclude the renewed employment contract. The court below found that, as a result, the Defendant gave the Plaintiff advance notice of dismissal on August 31, 1978, with a 30-day notice period, and then dismissed the Plaintiff on September 30, 1978.
The court below determined that, since the wages previously received by the Plaintiff, as found above, included various allowances in addition to the basic wage, and since the Defendant had proposed to pay an amount increased by 40 percent over the previous amount under the same working hours and form of work as before, but the Plaintiff had refused this, the Defendant's measure of dismissing the Plaintiff after giving a 30-day advance notice of dismissal was justified. Accordingly, the court below also rejected, as being without merit, the Plaintiff's claim for payment of wages from the day following the dismissal until the finalization of the judgment in this case, which claim was premised on the dismissal being invalid.
Comparing this with the record, the above fact-finding and determination of the court below are sufficiently acceptable, and there is no error therein of misunderstanding the legal principles concerning dismissal under the Labor Standards Act.
Ground 3,
As the court below properly found above, the Defendant's dismissal of the Plaintiff was justified, and accordingly the Plaintiff's employment relationship terminated on September 30, 1978. Therefore, the court below's measure of rejecting, for the reasons set forth in its findings, the Plaintiff's claim for payment of wages calculated as a 40 percent increase over the previous total monthly salary amount, premised on the bonus and the previous total monthly salary amount being the basic wage, is justified, and the argument criticizing the court below from the opposite viewpoint is without merit.
In conclusion, since all the grounds of appeal are without merit, the appeal is dismissed, and the costs of the appeal are to be borne by the Plaintiff. It is so decided, in accordance with the unanimous opinion of the Justices participating, as stated in the Order.
Supreme Court Justices: Kang Woo-young (Presiding Justice), Lee Jeong-woo, Shin Jeong-cheol