[Plaintiff, Appellant and Appellee] Seoul Metropolitan Government (Attorney Ju Yeong-dal for the litigation representative)
[Defendant, Appellee] Chairperson of the National Labor Relations Commission
[Defendant's Assisting Intervenor, Appellant] As listed in Attachment 1, "List of Defendant's Assisting Intervenors (Appellants)"
[Defendant's Assisting Intervenor] As listed in Attachment 2, "List of Defendant's Assisting Intervenors" (Attorney Yoon Ji-young for the litigation representative)
[Judgment Below] Seoul High Court Judgment 2019Nu58812, decided August 28, 2020
[Order]
All appeals are dismissed. Of the costs of appeal, the portion arising from the Plaintiff's appeal, including the portion arising from the assisting intervention, shall be borne by the Plaintiff, and the portion arising from the appeal of the Defendant's Assisting Intervenors listed in Attachment 1 shall be borne by said Defendant's Assisting Intervenors.
[Reasoning]
The grounds of appeal raised by the Plaintiff and the Defendant's Assisting Intervenors listed in Attachment 1 are examined together.
1. Outline of the Case and the Judgment Below
A. According to the reasoning of the judgment below and the record, the following facts may be found.
1) The Defendant's Assisting Intervenors (hereinafter "the Intervenors"), together with the workers listed in Attachment 3 to the judgment below (hereinafter "the Applicants in this case"), are educational public service employees who work as part-time (20 hours per week) after-school care workers ("Dolbom" caretakers) at public elementary schools under the jurisdiction of the Plaintiff.
2) The Applicants in this case, taking full-time (40 hours per week) after-school care workers as the comparator employees, filed an application for correction of discriminatory treatment with the Seoul Regional Labor Relations Commission, asserting that the Plaintiff's failure to pay long-service allowances and customized welfare points to part-time after-school care workers constituted discrimination on the basis of being short-time workers, which is prohibited under the Act on the Protection, etc. of Fixed-Term and Part-Time Workers (기간제 및 단시간근로자 보호 등에 관한 법률, hereinafter "the Fixed-Term Act").
3) The Seoul Regional Labor Relations Commission dismissed the application for correction of discriminatory treatment as to the customized welfare points on the ground that the limitation period had expired, and rendered an initial decision recognizing that the Plaintiff's failure to pay the long-service allowance from March 2016 to February 2018 to part-time after-school care workers who satisfied the requirements for such allowance constituted discriminatory treatment without reasonable grounds, ordering payment of the unpaid long-service allowance (one-half of the amount paid to the comparator employees).
4) The National Labor Relations Commission found that the limitation period as to the customized welfare points had not expired, and accordingly revoked that part of the initial decision; it then recognized that the Plaintiff's failure to pay the 2017 customized welfare points to part-time after-school care workers who satisfied the requirements therefor constituted discriminatory treatment without reasonable grounds, ordering payment of the unpaid customized welfare points (equivalent to KRW 350,000), while upholding the initial decision as to the long-service allowance.
B. The court below held that: (i) the limitation period for the application for correction of discriminatory treatment concerning the customized welfare points had not expired; (ii) since the long-service allowance and the customized welfare points differ in nature from other wage items, it would not be appropriate to group them into a single category for the purpose of determining whether unfavorable treatment exists; (iii) there was no reasonable ground for each instance of unfavorable treatment consisting of the complete non-payment of the long-service allowance and the customized welfare points; (iv) however, the amount of the 2017 customized welfare points that the Plaintiff is obligated to pay is KRW 225,000, corresponding to one-half of the customized welfare points paid to the comparator employees, so that the portion of the reexamination decision ordering payment in excess of that amount is unlawful; and (v) the application for correction of discriminatory treatment in this case could not be found to violate the collective agreement, the principle of good faith, or the principle of estoppel; and accordingly partially upheld the Plaintiff's claim seeking revocation of the reexamination decision.
2. Whether the Limitation Period for the Application for Correction of Discriminatory Treatment Concerning the Customized Welfare Points Had Expired (Plaintiff's First Ground of Appeal)
A. The period for filing an application for correction of discriminatory treatment under Article 9(1) of the Fixed-Term Act is a limitation period (제척기간), so that once such period has elapsed, the right to apply for correction under the Fixed-Term Act is extinguished; however, in the case of continuing discriminatory treatment, if the application for correction is filed within six months from the date of termination of the continuing discriminatory treatment, the limitation period is deemed to have been observed with respect to the entirety of such continuing discriminatory treatment (see Supreme Court Decision 2010Du3237, decided December 22, 2011).
Meanwhile, where an employer operates a customized welfare system that allocates welfare points on an annual basis as a selective welfare scheme, the act of allocating welfare points to employees does not in itself constitute payment of money or goods (see Supreme Court en banc Decision 2016Da48785, decided August 22, 2019, ), and an employee who has been allocated welfare points obtains, at any time within that year, the benefit of receiving customized welfare payments equivalent to the welfare points by making expenditures appropriate to the designated purposes and being reimbursed therefor by the employer. In light of the nature of such welfare point allocation and the procedures for its use, the state of discrimination arising from the failure to allocate welfare points must be regarded as continuing throughout the relevant year; therefore, it cannot be said that the discriminatory treatment terminates on the date of allocation of welfare points, and it is reasonable to view that discriminatory treatment concerning customized welfare points constitutes "continuing discriminatory treatment" that terminates on the last day of the relevant year.
B. The court below, in the same vein, determined that the application for correction of discriminatory treatment in this case concerning the 2017 customized welfare points satisfied the limitation period. Upon examination in light of the legal principles set forth above and the record, the above determination of the court below contains no error based on a misunderstanding of the legal principles concerning "continuing discriminatory treatment."
3. Whether Unfavorable Treatment Exists with Respect to the Long-Service Allowance (Plaintiff's Second Ground of Appeal)
A. Where a fixed-term worker files an application for correction of discriminatory treatment, asserting that he or she received discriminatory treatment in wages compared to a comparator employee on the ground of being a fixed-term worker, it should, in principle, be determined, for each specific wage item that the fixed-term worker alleges to be unfavorable treatment, whether unfavorable treatment exists as compared with the comparator employee. However, where there are special circumstances that make item-by-item comparison difficult or inappropriate—such as where the wages of the fixed-term worker and the comparator employee are composed of different items, or where the fixed-term worker received less favorable treatment with respect to a particular item but more favorable treatment with respect to another particular item—the related items should be grouped into categories, and it should be determined, for each category, whether unfavorable treatment exists for the fixed-term worker by comparing the amount of wages received by the fixed-term worker with the amount received by the comparator employee. In such a case, which category a particular wage item belongs to must be determined reasonably and objectively by comprehensively considering the basis for payment, subject matter, and nature of each wage item received by the comparator employee, the composition and calculation standards of the specific wage items received by the fixed-term worker, the reasons or circumstances for a particular wage item not being paid or being paid at a lower amount to the fixed-term worker, and the customary practice of wage payment (see, e.g., Supreme Court Decision 2016Du47857, decided September 26, 2019). This legal principle applies equally where a short-time worker files an application for correction of discriminatory treatment, asserting discriminatory treatment as compared with an ordinary worker.
B. The court below determined that, since the long-service allowance is paid only when a certain length-of-service requirement is met and is paid in proportion to the period of service—a characteristic that distinguishes it in nature from other specific wage items—the long-service allowance should be separated into its own category, and that the Plaintiff's failure to pay the long-service allowance to the Applicants in this case in proportion to their working hours constituted unfavorable treatment. Upon examination of the reasoning of the judgment below in light of the legal principles set forth above and the record, the above determination of the court below contains no error, affecting the outcome of the judgment, based on a misunderstanding of the legal principles concerning the method of determining unfavorable treatment of short-time workers.
4. Whether There Is a Reasonable Ground for the Discrimination Consisting of Non-payment of the Long-Service Allowance and the Customized Welfare Points (Plaintiff's Third Ground of Appeal)
The court below determined that it is difficult to find a reasonable ground for the discrimination consisting of the Plaintiff's failure to pay the long-service allowance and the customized welfare points to part-time after-school care workers, in light of the following: the Applicants in this case and the comparator employees, as after-school care workers, perform identical duties, and the qualifications, conditions, and procedures required for their hiring are identical; although the comparator employees, since they work beyond the operating hours of the after-school care classroom, may have a somewhat greater proportion of administrative work within their total working hours, it is difficult to conclude therefrom that the intensity of their work or their workload is greater; and the long-service allowance is intended to compensate for and encourage long-term service, while the customized welfare points are welfare-related in nature and need to be paid to short-time workers as well.
Upon examination of the reasoning of the judgment below in light of the relevant legal principles and the record, the above determination of the court below contains no error based on a misunderstanding of the legal principles concerning reasonable grounds for discrimination.
5. Scope of the Obligation to Pay the Customized Welfare Points (Ground of Appeal of the Intervenors Listed in Attachment 1)
The court below, for the reasons stated in its judgment, determined that the amount of the 2017 customized welfare points that the Plaintiff is obligated to pay to each part-time after-school care worker who satisfies the requirements therefor is KRW 225,000, corresponding to one-half of the KRW 450,000 paid to the comparator employees, and accordingly determined that the portion of the reexamination decision ordering payment of customized welfare points in excess of KRW 225,000 is unlawful.
Upon examination of the reasoning of the judgment below in light of the relevant legal principles, the above determination of the court below contains no error based on a misunderstanding of the legal principles concerning Article 18(1) of the Labor Standards Act (근로기준법), etc., as alleged in the grounds of appeal.
6. Whether the Claim for Customized Welfare Points Violates the Principle of Good Faith, etc. (Plaintiff's Second Ground of Appeal)
The court below determined that the 2017 collective agreement, which provided that customized welfare points would be paid to part-time after-school care workers in proportion to their working hours from March 1, 2018, could not be construed as intending to exclude the right to apply for correction of discriminatory treatment or to claim damages with respect to customized welfare points for the period prior to the aforementioned date of payment, and accordingly rejected the Plaintiff's argument that the application for correction of discriminatory treatment concerning the customized welfare points violates the collective agreement, the principle of good faith, or the principle of estoppel. Upon examination in light of the relevant legal principles and the record, the above determination of the court below contains no error based on a misunderstanding of the legal principles concerning the principle of good faith and the principle of estoppel, as alleged in the grounds of appeal.
7. Conclusion
The grounds of appeal raised by the Plaintiff and the Intervenors listed in Attachment 1 are all without merit and are hereby dismissed; and it is ordered, with the unanimous consent of the Justices involved, that of the costs of appeal, the portion arising from the Plaintiff's appeal, including the portion arising from the assisting intervention, shall be borne by the Plaintiff, and the portion arising from the appeal of the Intervenors listed in Attachment 1 shall be borne by said Intervenors, as stated in the Order.
[Attachment 1] List of Defendant's Assisting Intervenors (Appellants): omitted
[Attachment 2] List of Defendant's Assisting Intervenors: omitted
Justice Oh Kyung-mi (Presiding Justice), Justice Kim Seon-su (Justice in charge), Justice Noh Tae-ak, Justice Seo Kyung-hwan