[Plaintiffs, Appellees] Plaintiff 1 and 2 others (Attorneys of Law Firm Yeoneun, Kwon Doo-seob and 2 others, for the plaintiffs)
[Defendant, Appellant] ○○○ Co., Ltd. (Attorneys Lee Im-su and 3 others, for the defendant)
[Judgment Below] Seoul High Court Decision 2009Na117975 decided October 1, 2010
[Order]
All appeals are dismissed. The costs of the appeal shall be borne by the Defendant.
[Reasoning]
The grounds of appeal (including the supplementary brief on grounds of appeal submitted after the expiration of the period for submission of the grounds of appeal, to the extent it supplements the grounds of appeal) are examined as follows.
1. Under Article 2, Subparagraph 1 of the Act on the Protection, etc. of Dispatched Workers (파견근로자보호 등에 관한 법률; hereinafter “the Dispatch Act”), “worker dispatch” means having a worker, who has been employed by a dispatching business owner while maintaining the employment relationship, engage in work for a using business owner under the direction and supervision of the using business owner, in accordance with the terms of a worker dispatch contract.
Whether the legal relationship in a case where the original employer causes a certain worker to perform work for a third party constitutes worker dispatch subject to the Dispatch Act as described above should not be determined by the name or form of the contract attached by the parties, but should be determined according to the substance of the employment relationship, based on factors such as: whether the third party directly or indirectly gives binding instructions concerning the performance of the work itself and otherwise exercises substantial direction and supervision over the worker concerned; whether the worker concerned can be seen to have been substantially incorporated into the third party’s business, such as by being organized into a single working group together with workers employed by the third party and performing joint work directly with them; whether the original employer independently exercises the authority to make decisions regarding the selection of workers to be assigned to the work, the number of workers, education and training, working and rest hours, leave, and monitoring of work attitude, etc.; whether the purpose of the contract is fixed as the performance of specifically delimited work, whether the work undertaken by the worker concerned is distinguished from the work of workers employed by the third party, and whether such work involves expertise or technical skill; and whether the original employer possesses an independent business organization or facilities necessary to achieve the purpose of the contract.
Meanwhile, the former Dispatch Act (before its amendment by Act No. 8076 of December 21, 2006; the same shall apply hereinafter) provided, in the main text of Article 6, Paragraph 3, that “where a using business owner continuously uses a dispatched worker for more than two years, the using business owner shall be deemed to have employed the dispatched worker from the day following the date on which the two-year period expires” (hereinafter “the deemed direct employment provision”). This deemed direct employment provision is not limited in its application to cases of lawful worker dispatch only (see, e.g., Supreme Court en banc Decision 2007Du22320 decided September 18, 2008).
2. The court below, upon comprehensive consideration of the evidence it adopted, found the facts as stated in its judgment, and determined it to be reasonable to conclude, in light of the following circumstances taken together: that the Defendant determined the work location and working hours of the workers employed by the non-party company and exercised substantial direction and supervision over the content of their work; that the workers employed by the non-party company were assigned to the same team as workers employed by the Defendant and performed identical work; that managers employed by the Defendant, together with workers employed by the Defendant, monitored matters such as the attendance status of workers employed by the non-party company and pointed out matters concerning their work, thereby managing the workers employed by the non-party company; that the work subcontracted to the non-party company was identical to, and not clearly distinguished from, the work of workers employed by the Defendant; and that some of the work undertaken by workers employed by the non-party company consisted of repetitive cleaning and facility management work that did not require the non-party company’s specialized skill or the workers’ proficiency, and did not involve the input of the non-party company’s own technology or capital — that the Plaintiffs were in a worker dispatch relationship in which, after being employed by the non-party company, they were dispatched to the Defendant’s worksite and received direct direction and supervision from the Defendant.
Furthermore, the court below determined that, although the direct production process work in manufacturing, such as that performed by the Plaintiffs, is excluded from the scope of work eligible for worker dispatch under Article 5 of the former Dispatch Act, since the deemed direct employment provision applies even in the case of such unlawful worker dispatch, Plaintiff 1 and Plaintiff 2 are each deemed to have been employed from July 1, 2000, which was the point in time when two years had elapsed since the enforcement of the former Dispatch Act, and Plaintiff 3 is deemed to have been employed from January 17, 2002, the day following the expiration of two years from the date of his dispatch to the Defendant, thereby coming to hold the status of an employee of the Defendant.
Examining the record in light of the legal principles set out above, the above determination by the court below is justified, and there is no illegality therein, as alleged in the grounds of appeal, such as deviating from the limits of free evaluation of evidence in violation of the rules of logic and experience, or misunderstanding the legal principles concerning the requirements for worker dispatch or the criteria for distinguishing it from in-house subcontracting, or the ordering party’s right of instruction, etc.
3. Therefore, all appeals are dismissed, and the costs of the appeal are to be borne by the losing party. This judgment is rendered as stated in the Order with the unanimous consent of the Justices participating in the decision.
Justice Lee In-bok (Presiding Justice), Kim Yong-deok, Ko Young-han (Justice in Charge), Kim So-young