[Plaintiff, Appellant] Foundation Hamkke Ilhaneun Jaedan (Working Together Foundation) (Attorneys of Law Firm (Yuhan) Taepyeongyang, Lee Jeong-han and 2 others, representing)
[Defendant, Appellee] Chairperson of the National Labor Relations Commission
[Intervenor for Defendant]
[Judgment Below] Seoul High Court Judgment 2013Nu53679, decided November 6, 2014
[Order]
The appeal is dismissed. The costs of the appeal, including those arising from the intervention, shall be borne by the Plaintiff.
[Reasoning]
1. Course of the Case
A. The Plaintiff is a foundation that operates projects such as social job support for the unemployed, and the Intervenor for the Defendant (hereinafter "Intervenor") is a person who worked at the Plaintiff foundation as, among other positions, the head of the Social Enterprise Establishment Support Team. On September 24, 2012, the Plaintiff notified the Intervenor that his/her employment contract term would end as of October 25 of the same year. On November 21 of the same year, the Intervenor filed an application for remedy against unfair dismissal with the Seoul Regional Labor Relations Commission, arguing that this notification constituted unfair dismissal. On January 24, 2013, the Seoul Regional Labor Relations Commission rejected the Intervenor's application, finding that the notification was a legitimate notice of expiration of the contract term. However, on May 22, 2013, the National Labor Relations Commission accepted the Intervenor's request for reexamination, finding that the Intervenor had a legitimate expectation right regarding renewal of the employment contract and that the Plaintiff had wrongfully terminated the employment relationship.
B. The court below made the following determinations.
(1) First, the court below, comprehensively considering the evidence it adopted, found the following facts: that the Plaintiff and the Intervenor entered into an employment contract on October 26, 2010, with a contract term from October 26, 2010 to October 25, 2012, and that the employment contract stated that the contract could be renewed one month prior to its expiration; that the Intervenor held the position of Head of the Donor Management Team at the time of hiring, was transferred to Head of the Operations Support and Public Relations Team on March 14, 2011, and was transferred to Head of the Social Enterprise Establishment Support Team on March 9, 2012; that around September 19, 2012, the Plaintiff conducted personnel evaluations (hereinafter "this Personnel Evaluation") on the Intervenor and non-party 1, both fixed-term employees whose contract terms were nearing expiration; that this Personnel Evaluation was intended to provide an opportunity for conversion to regular employee status, with the first evaluation to be conducted by the general team leader (60%), the second evaluation by the office director (40%), and the final evaluation by the executive director; that in this Personnel Evaluation, the Intervenor's immediate superior, general team leader non-party 2, gave the Intervenor the highest rating of "S" grade in almost all evaluation items, while office director non-party 3 gave the Intervenor "B" to "D" grades in all evaluation items; that in the 2011 personnel evaluation, the Intervenor ranked 6th out of 10 team leaders in the competency evaluation and 8th (i.e., near the bottom) in the attendance evaluation, and that in the first half of 2012 personnel evaluation conducted around September 2012, the Intervenor ranked 1st out of 8 team leaders in the first evaluation and 8th out of 8 team leaders in the second evaluation; and that, prior to this notification, of the four fixed-term employees whose contract terms had expired, the Plaintiff converted all of them to regular employee status except for one who wished to resign of his/her own accord, and that even after this notification, the Plaintiff conducted personnel evaluations and held personnel committee meetings for the purpose of conversion to regular employee status for all 12 fixed-term employees whose contract terms were due to expire.
(2) The court below further determined, based on the above factual findings and the circumstances ascertainable from the adopted evidence—namely: ① among the Plaintiff's forms of employment for fixed-term employees, general-position fixed-term employees were hired for a set term at the request of the personnel committee, which required a verification period before conversion to regular employee status, with the intention of converting them to regular employees without a fixed term through personnel evaluations, etc., around the time of contract expiration; ② the Plaintiff's general-position fixed-term employees performed the same work as regular employees, and the Plaintiff had consistently told the general-position fixed-term employees, including the Intervenor, that they would be hired as regular employees absent special circumstances; ③ in fact, all general-position fixed-term employees who wished to convert to regular employee status prior to the Intervenor were converted to regular employee status, and thereafter, all fixed-term employees whose contract terms expired were given the opportunity for conversion to regular employee status; and ④ the Plaintiff conducted the personnel evaluation of the Intervenor one month prior to the contract expiration date in order to give the Intervenor an opportunity for promotion to regular employee status—that the Intervenor had a legitimate expectation right that he/she would be converted to regular employee status through a fair personnel evaluation.
(3) The court below also determined, in light of the following circumstances, that it could not be found that the Plaintiff gave this notification to the Intervenor after a reasonable and fair evaluation, and therefore that this notification lacked justifiable grounds and was invalid, and accordingly that the National Labor Relations Commission's reexamination decision was lawful.
(A) The Plaintiff gave this notification to the Intervenor without deliberation by the personnel committee. However, in the case of non-party 1, who was also subject to this Personnel Evaluation along with the Intervenor, he/she was converted to regular employee status around November 1, 2012 through the personnel committee; however, at the time of conversion to regular employee status, both the head of the Planning Team to which non-party 1 belonged and the head of the Planning Strategy General Team stated that they had never conducted a personnel evaluation of non-party 1, raising doubts as to whether the procedure for this Personnel Evaluation was in fact conducted fairly.
(B) Even under the method of this Personnel Evaluation as notified to the Intervenor, the criteria for eligibility for conversion to regular employee status were not specifically established. In fact, in this Personnel Evaluation, the first-level evaluator, the general team leader, and the second-level evaluator, the office director, gave conflicting evaluations of the Intervenor, and it is unclear on what basis such evaluations were made.
(C) Office director non-party 3 gave the Intervenor a "D" grade in the attendance evaluation; however, even based on the grounds cited for this, it appears that under the evaluation criteria a "B" grade rather than a "D" grade should have been given, raising doubts as to whether this Personnel Evaluation was conducted according to objective criteria.
(D) The Intervenor ranked 6th out of 10 team leaders in the 2011 competency evaluation and 1st in the overall evaluation among all team leaders in the first evaluation of the first half of 2012 (although the Intervenor received the lowest score among all team leaders in the second evaluation, the second evaluation was conducted at the same time as this Personnel Evaluation by office director non-party 3), and there is also material to support that the Intervenor diligently performed his/her assigned duties.
C. The Plaintiff's grounds for appeal are as follows.
(1) Even if a fixed-term employee is recognized as having a legitimate expectation right regarding renewal of the employment contract, this does not mean that the fixed-term employee in question may be recognized as having the status of a regular employee. The expectation right regarding conversion to regular employee status must be recognized under stricter requirements than the expectation right regarding renewal. It cannot be found that the Intervenor had a legitimate expectation right regarding renewal of the employment contract.
(2) This notification did not wrongfully infringe upon the Intervenor's expectation right regarding renewal.
2. Judgment of the Supreme Court
A. In the case of an employee who has entered into an employment contract for a fixed term, it is in principle that upon expiration of that term, the employment relationship as an employee naturally terminates. However, where the employment contract, rules of employment, collective bargaining agreement, etc. contain a provision to the effect that, despite the expiration of the term, the employment contract will be renewed if certain requirements are satisfied, or even where there is no such provision, if, in light of the various circumstances surrounding the employment relationship in question, a relationship of trust has been formed between the parties to the employment contract such that the employment contract will be renewed upon satisfaction of certain requirements, thereby recognizing the employee's legitimate expectation right that the employment contract will be renewed accordingly, then it is the case that where the employer wrongfully refuses to renew the employment contract in violation of this, such refusal, like unfair dismissal, has no effect, and in this case, the employment relationship after the expiration of the term must be deemed to be the same as if the previous employment contract had been renewed (see Supreme Court Judgment 2007Du1729, decided April 14, 2011, etc.).
Meanwhile, Article 4 of the Act on the Protection, etc. of Fixed-Term and Part-Time Employees (기간제 및 단시간근로자 보호 등에 관한 법률, hereinafter the "Fixed-Term Employment Act"), enacted on December 21, 2006 and effective from July 1, 2007, provides in Paragraph 1 that "An employer may use a fixed-term employee within a period not exceeding two years (in the case of repeated renewal, etc. of a fixed-term employment contract, within a period in which the total period of continuous employment does not exceed two years)," while providing in the proviso to Paragraph 1 exceptions under which a fixed-term employee may be used for a period exceeding two years, and provides in Paragraph 2 that "Where an employer uses a fixed-term employee for a period exceeding two years even though the grounds under the proviso to Paragraph 1 do not exist or have ceased to exist, the fixed-term employee shall be deemed to be an employee who has entered into an employment contract without a fixed term."
As described above, with the enforcement of the Fixed-Term Employment Act, an employer may use a fixed-term employee within a period of two years, and if the total period of use of a fixed-term employee exceeds two years, the fixed-term employee is deemed to be an employee without a fixed term; however, considering that the legislative purpose of the above provisions is fundamentally to guarantee the status of employees by preventing the abuse of fixed-term employment contracts, it cannot be said that the mere enforcement of the Fixed-Term Employment Act excludes or restricts a fixed-term employee's legitimate expectation right regarding renewal that had already been formed prior to its enforcement (see Supreme Court Judgment 2011Du12528, decided February 13, 2014). Furthermore, the formation of a fixed-term employee's legitimate expectation right regarding renewal is not restricted by the above provisions either.
B. The Fixed-Term Employment Act provides in Article 5 that "Where an employer intends to enter into an employment contract without a fixed term, the employer shall endeavor to preferentially employ fixed-term employees engaged in the same or similar work at the relevant business or workplace," provides in Article 8, Paragraph 1 that "An employer shall not discriminate against a fixed-term employee, on the ground of being a fixed-term employee, as compared to an employee who has entered into an employment contract without a fixed term engaged in the same or similar work at the relevant business or workplace," and provides in Article 9, Paragraph 1 that "A fixed-term employee or part-time employee who has been subjected to discriminatory treatment may apply to the Labor Relations Commission under Article 1 of the Labor Relations Commission Act for correction thereof."
Considering the contents and legislative purpose of each of the above provisions together with the legal principles regarding the expectation rights of fixed-term employees discussed above, it should be held that: where the employment contract, rules of employment, collective bargaining agreement, etc. contain a provision to the effect that a fixed-term employee will be converted to an employee without a fixed term upon satisfaction of certain requirements through personnel evaluation, etc. around the time the fixed-term employee's contract term is due to expire, or even where there is no such provision, if, considering various circumstances surrounding the employment relationship in question—such as the content of the employment contract, the motive and circumstances under which the employment contract was concluded, whether standards and procedures regarding conversion to an employee without a fixed term have been established and the actual state thereof, and the content of the work performed by the employee—a relationship of trust has been formed between the parties to the employment contract such that the employee will be converted to an employee without a fixed term upon satisfaction of certain requirements, thereby recognizing the employee's legitimate expectation right that he/she may be converted to an employee without a fixed term, then where the employer, in violation of this, refuses conversion to an employee without a fixed term without reasonable grounds and notifies termination of the employment contract, such notification, like unfair dismissal, has no effect, and the employment relationship thereafter must be deemed to be the same as if the employee had been converted to an employee without a fixed term.
C. Examining the judgment below in light of the legal principles set forth above, the court below's determination—to the same effect—that the Intervenor had a legitimate expectation right that he/she would be converted to regular employee status through a legitimate personnel evaluation, and that it could not be found that the Plaintiff gave this notification after a reasonable and fair evaluation, such that this notification lacked justifiable grounds and was invalid, is, although its reasoning is partly inappropriate, acceptable in its conclusion. There is no error, as alleged in the grounds for appeal, in misunderstanding the legal principles regarding a fixed-term employee's expectation right of renewal or expectation right of conversion to regular employee status.
3. Conclusion
Therefore, the appeal is dismissed, and the costs of the appeal, including those arising from the intervention, are to be borne by the losing party. This Judgment is rendered as stated in the Order by the unanimous opinion of the Justices participating in the adjudication.
Justice Park Byung-dae (Presiding Justice), Park Bo-yeong, Kwon Soon-il (Justice in charge), Kim Jae-hyung