[Plaintiff, Appellant and Appellee] Kookmin Bank Co., Ltd. (Attorneys Ju Han-il et al., 4 others, for the Plaintiff)
[Defendant, Appellee and Appellant] Chairman of the National Labor Relations Commission
[Intervenor for Defendant] As listed in the attached list. (Attorneys of Law Firm Simin, Kim Seon-su et al., 1 other, for the Intervenor)
[Judgment Below] Seoul High Court Decision 2010Nu20241 decided January 28, 2011
[Order]
All appeals are dismissed. The costs of appeal are to be borne by each appellant.
[Reasoning] The grounds of appeal are examined.
1. As to the Plaintiff's grounds of appeal
A. As to the first ground of appeal
Article 8(1) 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 Employees Act") provides that "an employer shall not subject a fixed-term employee to discriminatory treatment, 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 and who performs the same or similar duties at the relevant business or workplace." This provision designates, as the comparator employee for determining whether discriminatory treatment has occurred against a fixed-term employee, "an employee who has entered into an employment contract without a fixed term and who performs the same or similar duties at the relevant business or workplace."
Whether the duties of the employee selected as the comparator constitute the same or similar duties as those of the fixed-term employee should be determined not on the basis of the job description specified in the rules of employment or the employment contract, but on the basis of the duties actually performed by the employee. Even if the duties performed by the two are not entirely identical and there are some differences in the scope of duties or in responsibilities and authority, if there is no essential difference in the content of the principal duties, then, absent special circumstances, they should be regarded as performing the same or similar duties.
According to the reasoning of the judgment below, the court below, citing the first-instance judgment, found the facts as stated therein, and then determined as follows. Among the wage-peak-system employees, the Plaintiff assigned to those employees concurrently performing sales marketing duties and internal control inspection duties (hereinafter "sales marketing/internal control inspectors") sales marketing duties nominally as their principal duty and internal control inspection duties as an ancillary duty. However, the Plaintiff exercised no management or supervision whatsoever over the sales marketing duties, and it does not appear that sales marketing performance was considered as an important factor in performance evaluation; in fact, their sales performance was negligible. By contrast, the internal control inspection duties appear to have been properly performed, including through daily recording of the results of such work. In addition, the Plaintiff appointed wage-peak-system employees as full-time self-inspectors (자점검사전담자) to perform the internal control inspection duties that had previously been handled by the fixed-term employees serving as internal control inspectors. Taking these circumstances comprehensively into account, the court below determined that the sales marketing/internal control inspectors and the full-time self-inspectors could be found to have performed the same or similar duties as the Intervenors for the Defendant (hereinafter the "Intervenors"), who served as internal control inspectors, and therefore fell within the scope of comparator employees under Article 8(1) of the Fixed-Term Employees Act.
Upon examining the record in light of the legal principles set out above and the reasoning of the judgment below, the above determination by the court below is justified, and there is no error of law, such as a misapprehension of legal principles, as alleged in the grounds of appeal.
B. As to the second ground of appeal
Article 2, Subparagraph 3 of the Fixed-Term Employees Act defines discriminatory treatment as "treating [an employee] unfavorably without reasonable grounds with respect to wages and other working conditions, etc."
Here, "unfavorable treatment" refers to any disadvantage suffered by a fixed-term employee as a result of an employer treating the fixed-term employee differently from the comparator employee with respect to wages and other working conditions, etc. "The absence of reasonable grounds" refers to a case where there is no recognized necessity for differential treatment of the fixed-term employee, or, even where such necessity is recognized, the method or degree of the differential treatment is not appropriate. Whether reasonable grounds exist should be determined by comprehensively considering, on the basis of the content of the unfavorable treatment at issue in the particular case and the circumstances relied upon by the employer as grounds for the unfavorable treatment, factors such as the fixed-term employee's form of employment, the content, scope, authority, and responsibility of the duties, and the factors determining wages and other working conditions, etc.
According to the reasoning of the judgment below, the court below, citing the first-instance judgment, determined that the Plaintiff's payment to the Intervenors of lunch allowances and commuting allowances in amounts lower than those paid to the comparator employees, namely the sales marketing/internal control inspectors and the full-time self-inspectors, constituted unfavorable treatment. Considering that the lunch allowances and commuting allowances have the character of reimbursement for actual expenses, and that, in light of the fact that the Plaintiff also paid lunch allowances and commuting allowances to other fixed-term employees such as tellers and support staff, it is difficult to directly link these allowances to the inducement of long-term continued employment, the court below determined, upon comprehensive consideration of these circumstances, that there were no reasonable grounds for the Plaintiff's unfavorable payment of lunch allowances and commuting allowances to the Intervenors as described above.
Upon examining the record in light of the legal principles set out above and the reasoning of the judgment below, the above determination by the court below is justified, and there is no error of law, such as a misapprehension of legal principles, as alleged in the grounds of appeal.
2. As to the Defendant's grounds of appeal
According to the reasoning of the judgment below, the court below, citing the first-instance judgment, determined as follows. The annual salary of the sales marketing/internal control inspectors was set at 50% or 42% of their annual salary prior to conversion to the wage peak system, and of the agreed annual salary thus determined, 80% was to be paid as base pay, etc., and the remaining 20% as variable performance-based pay (based on Grade G in performance evaluation). Conceptually, therefore, the variable performance-based pay is not something paid in addition to a fixed annual salary, but itself constitutes a portion of the annual salary. For this reason, if a sales marketing/internal control inspector receives Grade G, the middle grade, in the performance evaluation, he or she simply receives the agreed annual salary as is; but if he or she receives a lower grade, such as Grade C or D, the annual salary is instead reduced to a level of 95% or 90%. This variable performance-based pay is thus very different in character from the variable performance-based pay paid to other fixed-term employees, such as tellers, which is paid in addition to a fixed amount of pay. As a result, sales marketing/internal control inspectors ultimately receive an annual salary equivalent to between 90% and 110% of the agreed annual salary, which can be seen as intended to induce employees to continuously improve their work performance capabilities over a long period by reflecting their actual performance in the previous year in the following year's pay. By contrast, the compensation system for internal control inspectors, including the Intervenors, was not from the outset structured, as it was for sales marketing/internal control inspectors, on the premise of an agreed annual salary divided into base pay and variable performance-based pay. Accordingly, if the Plaintiff were to pay the Intervenors an amount equivalent to 20% of their annual salary as variable performance-based pay, as ordered in the retrial determination at issue in this case, the Intervenors would end up receiving 120% of their original annual salary, thereby receiving a higher proportion of performance-based pay than the sales marketing/internal control inspectors. Comprehensively considering these circumstances, the court below determined that the variable performance-based pay at issue in this case, which the Plaintiff paid on February 10, 2009 to the sales marketing/internal control inspectors who served as the comparator employees for the Intervenors, could not be characterized as pay of a nature applicable to the Intervenors, and therefore there were reasonable grounds for the Plaintiff's failure to pay it to the Intervenors.
Upon examining the record in light of the legal principles regarding the method of determining reasonable grounds set out above and the reasoning of the judgment below, the above determination by the court below is justified, and there is no error of law, such as a misapprehension of legal principles, as alleged in the grounds of appeal.
3. Conclusion
Therefore, all appeals are dismissed, and the costs of appeal are to be borne by each losing party. This Judgment is rendered as stated in the Order by the unanimous opinion of the Justices participating in the adjudication.
[[Attachment] List of Intervenors for Defendant: Omitted]
Justices Min Il-yeong (Presiding Justice), Lee In-bok, Park Bo-yeong (Justice in Charge), Kim Shin