[Plaintiff, Appellant and Appellee] Lee An-geun, Attorney Han Gi-jun, counsel for the plaintiff
[Defendant, Appellee and Appellant] Dongsin Bus Co., Ltd., Attorney Kim Gwang-il, counsel for the defendant
[Original Decision] Daegu High Court Decision 77Na826, decided June 9, 1978
[Order]
All appeals are dismissed. The costs of appeal shall be borne by the plaintiff and the defendant, respectively.
[Reasoning]
The Court examines Grounds of Appeal Nos. 1 and 2 of the plaintiff and Ground of Appeal No. 1 of the defendant.
Article 19, Paragraph 2 of the Labor Standards Act (근로기준법) provides that where the so-called "average wage" calculated pursuant to Paragraph 1 of the same Article is lower than the "ordinary wage," such ordinary wage shall be deemed the average wage. The purpose of this provision is as follows: since the average wage is calculated by dividing the total amount of wages paid during the three-month period by the total number of days in that three-month period, regardless of the number of days actually worked during that period, if the number of days actually worked during the three months is small, resulting in a small total amount of wages received during the three months, the amount of the average wage would become unreasonably low, leading to an unjust result. That is, in order to prevent unjust harm to the worker resulting from a reduction in the average wage where the worker was unable to work normally due to circumstances of his own, the lower limit of the average wage is set at the level of the ordinary wage.
Therefore, unlike the calculation of the average wage, the term "ordinary wage" under Article 19, Paragraph 2 of the Labor Standards Act must be understood as the daily average of the fixed and ordinary general wage—namely, the basic wage and any fixed allowances equivalent thereto paid on a fixed basis—without regard to the actual number of days worked or the wages actually received.
Accordingly, in this case, the plaintiff's ordinary wage should be calculated as 5,100 won × 20/30 = 3,400 won. If, as in the method of calculation adopted by the court below, one were to calculate the wage per hour and then convert it into the wage per day, the facts show that, on a monthly basis, the plaintiff had 10 days of paid leave and worked 20 days, working 12 hours per day of actual work. When converted on a monthly basis, this amounts to an average of 8 hours worked per day; therefore, the plaintiff's ordinary daily wage should be the amount obtained by multiplying the hourly wage by 8 hours, and it cannot be regarded as the amount obtained by multiplying the hourly wage by 12 hours, which is the actual number of hours worked per day during the 20 days actually worked, rather than the average number of working hours.
If, as the argument contends, the ordinary wage were to be calculated by multiplying the actual hours worked on days actually worked, then, so long as the daily wage amount remained the same, the ordinary wage would come out to be identical regardless of whether the number of days actually worked in a month was 5, 10, 15, 20, or any other number—an unreasonable result. Therefore, the lower court's calculation of the plaintiff's ordinary wage as 5,100 × 20/240 × 8 = 3,400 is justified, and in this calculation method, the "8 hours" refers, as explained above, to the average number of working hours per day calculated on a monthly basis, not to the statutory working hours. Accordingly, the plaintiff's ground of appeal—that the court below erred in calculating the amount of the ordinary wage or that there is an inconsistency or insufficiency in the reasoning—and the defendant's ground of appeal—that there can be no difference between the average wage and the ordinary wage in this case—are both without merit.
Next, as to Ground of Appeal No. 2 of the defendant, the Court examines as follows: where a business operator, under the Industrial Accident Compensation Insurance Act (산업재해보상법), falsely underreports a worker's wages and pays insurance premiums based thereon, a worker who is entitled to receive insurance benefits may, at his election, either pursue an objection procedure under the Act on Industrial Accident Compensation Insurance Business and Examination (산업재해보상보험업무및심사에관한법률) to seek correction of the Commissioner of Labor's determination of the insurance benefit amount—which was calculated based on the falsely reported wages—or bring a claim against the business operator for damages sustained as a result of the incorrect determination of the insurance benefit amount caused by the false report. Accordingly, the fact that the plaintiff, instead of pursuing the former remedy, elected to pursue the latter and brought the present claim cannot be deemed to constitute negligence on the part of the plaintiff. Therefore, this argument is without merit.
Accordingly, the Justices, having reached unanimous agreement, render judgment as stated in the Order.
Justice Yang Byeong-ho (Presiding Justice), Ju Jae-hwang, Im Hang-jun, Ra Gil-jo