[Plaintiff, Appellee]
[Defendant, Appellant] Korea Advanced Institute of Science and Technology, Litigation Representative Attorney Ko Seok-yun
[Judgment Below] Seoul High Court Decision 80Na3428 rendered on February 9, 1981
[Order]
The appeal is dismissed.
The costs of the appeal shall be borne by the Defendant.
[Reasoning]
The grounds of appeal submitted by the Defendant's litigation representative are examined.
Where an employer's wrongful dismissal is null and void or has been rescinded, the dismissed worker's status as an employee is deemed to have continued throughout that period, and the fact that the worker was unable to provide labor during that time is attributable to a cause imputable to the employer. Accordingly, the worker may claim payment of the full amount of wages that would have been received had the worker continued working, pursuant to Article 538, Paragraph 1 of the Civil Act (민법).
The provision of Article 38 of the Labor Standards Act (근로기준법), as pointed out in the argument, provides that where an employer suspends business operations due to a cause attributable to the employer, the employer is obligated, for the welfare of the worker, to pay the worker at least 60/100 of the average wage during the period of suspension; this provision does not exclude the application of Article 538, Paragraph 1 of the Civil Act. Therefore, in a case such as the present one, where the worker seeks payment of wages from the employer on the ground that the worker was unable to perform labor due to a cause attributable to the employer, it cannot be interpreted, based on the above provision of the Labor Standards Act, that it suffices for the employer to pay only 60/100 of the average wage.
In this sense, the judgment below, which ordered payment of the full amount of wages that the Plaintiff would have received had he continued to work as an employee of the Defendant, is justified, and the argument criticizing the judgment below from the opposite viewpoint is without merit.
Furthermore, the argument contends that, even if the Defendant is obligated to pay wages, the income earned by the Plaintiff from working elsewhere during the period from dismissal to reinstatement should be deducted. However, this argument is a new argument that was not raised up through the court below, and moreover, there is no material in the record to find that the Plaintiff earned income from another source during that period. Therefore, this argument cannot be accepted.
All of the grounds of appeal are without merit.
Therefore, the appeal is dismissed, and the costs of the appeal are to be borne by the losing party. This judgment is rendered as stated in the Order, by the unanimous opinion of the participating Justices.
Presiding Justice Shin Jeong-cheol, Justice Kang U-yeong, Justice Lee Jeong-woo