[Plaintiff, Appellee] Plaintiff (Attorneys of Law Firm Seungji, Shim Hyung-seob and 1 other, for the Plaintiff)
[Defendant, Appellant] Chairman of the National Labor Relations Commission
[Defendant's Intervenor] Yeosu Gwangyang Port Authority (Attorneys of Law Firm Seoseok, Yoon Chun-ju and 8 others, for the Intervenor)
[Judgment Below] Daejeon High Court Decision 2020Nu12481 rendered on June 18, 2021
[Order]
The judgment below is reversed, and the case is remanded to the Daejeon High Court.
[Reasoning]
The grounds of appeal are examined.
1. Overview of the Case and the Judgment Below
A. Overview of the Case
According to the reasoning of the judgment below and the record, the following facts may be known.
1) The Plaintiff joined the Defendant's Intervenor, Yeosu Gwangyang Port Authority (hereinafter referred to as the "Intervenor"), on August 19, 2011, and from December 6, 2017, was dispatched to Yeosu Gwangyang Port Management Co., Ltd., a subsidiary of the Intervenor, where he worked as its representative director.
2) Following a special audit conducted by the Ministry of Oceans and Fisheries and its request for heavy disciplinary action against the Plaintiff, the Intervenor imposed upon the Plaintiff a disciplinary suspension from duty for one month on December 28, 2018 (hereinafter referred to as the "instant Suspension"). The Plaintiff retired due to reaching the mandatory retirement age on December 31, 2018.
3) On January 3, 2019, the Plaintiff filed an application with the Jeonnam Regional Labor Relations Commission for relief from unfair suspension, seeking cancellation of the instant Suspension and payment of an amount equivalent to the wages reduced due to the suspension during the suspension period (hereinafter referred to as the "wage equivalent amount"). On March 25, 2019, the Jeonnam Regional Labor Relations Commission dismissed the Plaintiff's application for relief on the ground that the employment relationship had already terminated due to mandatory retirement, and thus there was no interest in relief. On June 28, 2019, the National Labor Relations Commission dismissed the Plaintiff's request for reexamination for the same reasons as the initial determination (hereinafter referred to as the "instant Reexamination Determination").
B. Judgment Below
The court below determined as follows.
Even where an employee, while disputing the validity of a dismissal by filing an application for relief from unfair dismissal, reaches the mandatory retirement age or the term of the employment contract expires, thereby rendering reinstatement to the original position impossible, if it is still necessary for the employee to receive the amount equivalent to wages during the period of dismissal, the interest in receiving a relief order for payment of the wage equivalent amount should be deemed to continue to exist; and this legal principle likewise applies where an employee who has already retired upon reaching the mandatory retirement age applies for a relief order for unfair suspension in order to recover the loss of wages not received or wages reduced during the suspension period due to a prior unfair suspension.
Since the Plaintiff, who had already reached the mandatory retirement age at the time of filing the application for relief from unfair suspension, also needs to receive the amount equivalent to the wages not received due to the suspension, it should be found that the Plaintiff has an interest in receiving a relief order concerning payment of the wage equivalent amount for the suspension period.
2. Judgment of the Supreme Court
The judgment below cannot be accepted, for the following reasons.
A. Relevant Legal Principles
It is appropriate to hold that where an employee, at the time of filing an application for relief from unfair dismissal, has already departed from the status of an employee due to reasons such as having reached the mandatory retirement age or the expiration of the term of the employment contract, the interest in receiving a relief order from the Labor Relations Commission has already been extinguished; and this legal principle likewise applies to applications for relief concerning disciplinary actions other than dismissal or other punitive measures. The reasons are as follows.
1) The system of relief orders for unfair dismissal, etc. as prescribed in Article 28 and the following provisions of the Labor Standards Act (근로기준법) is institutionally intended to provide, with respect to disadvantageous dispositions such as dismissal, suspension without pay, disciplinary suspension, reassignment, wage reduction, and other punitive measures imposed by an employer upon an employee as a sanction, a means of relief that is more prompt, simple, economical, and flexible than the ordinary means of relief through civil litigation. It should be held that allowing the use of the administrative relief procedure for the purpose of compensating for damages arising from a past unfair dismissal, etc., even in a case where the applicant has already departed from the status of an employee at the time of filing the application for relief from unfair dismissal, etc., is not included within the original scope of protection of the relief order system for unfair dismissal, etc., which is intended as relief against disadvantageous dispositions imposed by an employer upon an employee as a sanction.
2) The Labor Standards Act provides that "if an employer commits an unfair dismissal, etc. against an employee, the employee may apply to the Labor Relations Commission for relief" (Article 28, Paragraph 1), thereby granting the right to apply for relief to an "employee." Since an employee means a person who provides labor to a business or workplace for the purpose of earning wages, regardless of the type of occupation (Article 2, Paragraph 1, Item 1 of the Labor Standards Act), where the employment contract relationship had already terminated at the time of filing the application for relief from unfair dismissal, etc., such person cannot be deemed to be in the position of an employee as prescribed in Article 28, Paragraph 1 of the Labor Standards Act, and it is difficult to interpret that the mere circumstance that an employment contract relationship existed with the employer prior to filing the application for relief from unfair dismissal, etc. is sufficient to include such person within the scope of employees possessing the right to apply for relief under Article 28, Paragraph 1 of the Labor Standards Act.
3) Upon concluding the examination following an application for relief from unfair dismissal, etc., if the Labor Relations Commission determines that an unfair dismissal, etc. has occurred, it must issue a relief order to the employer (Article 30, Paragraph 1 of the Labor Standards Act). Once a relief order is issued, the employer bears a public-law obligation to comply with it, and if the employer fails to comply, a compulsory performance charge of up to 30 million won may be imposed (Article 33 of the Labor Standards Act), and an employer who fails to comply with a finalized relief order becomes subject to criminal punishment (Article 111 of the Labor Standards Act). Therefore, if the interest in relief of an employee is recognized even where the employment contract relationship had already terminated at the time of filing the application for relief from unfair dismissal, etc., this would result in excessively imposing public-law obligations upon the employer or expanding the scope of criminal punishment.
4) The Supreme Court en banc Decision 2019Du52386 rendered on February 20, 2020 held that, where an employee, while disputing the validity of a dismissal by filing a lawsuit against a reexamination determination dismissing an application for relief from unfair dismissal, reaches the mandatory retirement age or the term of the employment contract expires, thereby rendering reinstatement to the original position impossible, the interest in the lawsuit for a relief order for payment of the wage equivalent amount continues to exist if it is still necessary for the employee to receive the amount equivalent to wages during the period of dismissal. Therefore, it cannot be said that the above legal principle applies as it stands where the employee had already departed from the status of an employee prior to filing the application for relief from unfair dismissal, etc.
5) Even from the standpoint of employee protection or procedural economy, while there is room to view it as undesirable to exclude an applicant from the relief procedure on the ground that the employment contract relationship terminated in the middle of the process, after the employee had used the administrative relief procedure in order to receive prompt relief, or to render meaningless the investigation conducted by the Labor Relations Commission up to that point and the determination made based on the results of such investigation, on the ground that the employment contract relationship had terminated, the necessity for such consideration is not significant where the employment contract relationship had already terminated at the time of filing the application for relief. It is sufficiently reasonable to differentiate the existence of interest in seeking a relief order depending on whether the point of termination of the employment contract relationship occurred before or after the filing of the application for relief.
6) The Labor Standards Act (as amended by Act No. 18176, promulgated May 18, 2021) newly established a provision stating: "Even where reinstatement to the original position (in cases other than dismissal, referring to restoration to the original state) is impossible for an employee due to expiration of the term of the employment contract, arrival of the mandatory retirement age, or other reasons, the Labor Relations Commission shall issue a relief order or dismissal decision under Paragraph 1. In such a case, if the Labor Relations Commission determines that an unfair dismissal, etc. has occurred, it may order the employer to pay to the employee money or goods equivalent to the wages that the employee would have received had the employee provided labor during the period of dismissal (in cases other than dismissal, referring to money or goods equivalent to restoration to the original state)" (Article 30, Paragraph 4). The above provision is intended to recognize that an employee has an interest in receiving a relief order for payment of the wage equivalent amount even where reinstatement to the original position becomes impossible for the employee during the course of the relief procedure for unfair dismissal, etc. due to expiration of the term of the employment contract, arrival of the mandatory retirement age, or other reasons, and is not to be interpreted as meaning that the interest in relief should be recognized even where the employment contract relationship had already been extinguished at the time of filing the application for relief, such that the person had departed from the status of an employee.
B. As to the Instant Case
The Plaintiff received the disciplinary suspension of the instant Suspension on December 28, 2018, and filed an application for relief from unfair suspension with the Jeonnam Regional Labor Relations Commission on January 3, 2019, but had already retired due to reaching the mandatory retirement age on December 31, 2018. According to the legal principles set forth above, since the Plaintiff's employment contract relationship had already terminated due to the arrival of the mandatory retirement age at the time of filing the application for relief from unfair suspension, the Plaintiff's interest in receiving a relief order cannot be recognized. Nevertheless, the court below determined that the Plaintiff, who had already reached the mandatory retirement age at the time of filing the application for relief from unfair suspension, etc., had an interest in receiving a relief order concerning payment of the wage equivalent amount for the suspension period. The judgment below contains an error that misapprehended the legal principles concerning the existence of interest in relief, etc., thereby affecting the judgment. The ground of appeal pointing this out is well-founded.
3. Conclusion
Therefore, without examining the remaining grounds of appeal, the judgment below is reversed, and the case is remanded to the court below for further hearing and determination. This Decision is rendered pursuant to the unanimous opinion of the Justices participating in this case, as stated in the Order.
Justice Ahn Cheol-sang (Presiding Justice), Justice Kim Jae-hyung, Justice Noh Jeong-hee, Justice Lee Heung-koo (Justice in Charge)