[Plaintiff, Appellee] Plaintiff (Attorneys of Law Firm Nuri, Park Kyung-hoon and 3 others, for the Plaintiff)
[Defendant, Appellant] Head of Anyang Branch Office of the Central Regional Employment and Labor Office (중부지방고용노동청 안양지청장)
[Judgment Below] Seoul High Court Decision 2015Nu36555, decided July 9, 2015
[Order]
The appeal is dismissed. The costs of the appeal are to be borne by the Defendant.
[Reasoning]
The grounds of appeal are examined as follows.
1. As to the first ground of appeal
A. (1) Article 70(2) of the Employment Insurance Act (고용보험법) (hereinafter “this provision”) is a mandatory provision intended to promptly settle the legal relationship concerning childcare leave benefits. In order to receive childcare leave benefits, an employee must apply for payment to the head of the competent employment security office within the period prescribed by this provision (see Supreme Court en banc Decision 2018Du47264, decided March 18, 2021).
(2) Where an employee who took childcare leave applied for childcare leave benefits, was recognized as an eligible recipient by the head of the competent employment security office, and received benefits, but the amount received falls short of the legitimate amount of childcare leave benefits, the employee may additionally claim, before the extinctive prescription period for the right to claim childcare leave benefits expires, the difference between the legitimate amount of childcare leave benefits and the amount already received, from the head of the competent employment security office. This provision does not apply to such additional claims.
(3) Meanwhile, the starting point of the extinctive prescription period for the right to claim childcare leave benefits that may be additionally claimed shall be deemed to be the date on which the employee was served with the decision on payment of benefits in response to the initial application for childcare leave benefits from the head of the competent employment security office; provided, however, that where the head of the competent employment security office had already made a decision on payment of childcare leave benefits before the childcare leave ended, pursuant to the employee’s application for installment payment of childcare leave benefits, it is reasonable to deem the starting point to be the date on which the entire period of childcare leave that the employee was permitted to take and did take came to an end (see Supreme Court Decision 2016Du59683, decided April 29, 2021).
B. According to the reasoning of the judgment below and the record, the following facts may be found: (1) the Plaintiff took childcare leave, as permitted, from September 14, 2010 to September 13, 2011, and during that period received childcare leave benefits in six installments; (2) before the three-year extinctive prescription period for the right to claim childcare leave benefits prescribed in Article 107(1) of the former Employment Insurance Act (before amendment by Act No. 12323, January 21, 2014) had elapsed from the date of expiration of the childcare leave period, the Plaintiff, on January 3, 2014, applied to the Defendant for additional payment of the difference between the childcare leave benefits calculated by including part of the amount equivalent to bonuses, long-term service allowances, meal subsidies, and transportation subsidies (hereinafter collectively “bonuses, etc.”) and customized welfare card points (hereinafter “welfare points”) in ordinary wages, and the benefits actually received during the childcare leave period.
C. Examining the above facts in light of the legal principles set forth above, although the part of the judgment below characterizing this provision as a directory provision is inappropriate, the conclusion that the right to claim additional payment of childcare leave benefits had not yet been extinguished by prescription is justified. There is no error in the judgment below, as alleged in the grounds of appeal, of misunderstanding the legal principles concerning the extinctive prescription of the right to claim childcare leave benefits, such as would have affected the judgment.
2. As to the second ground of appeal
A. The court below determined, for the reasons stated in its judgment, that the amount equivalent to welfare points paid to the Plaintiff and other executives and employees under certain standards by the Korea Workers’ Compensation and Welfare Service (근로복지공단) in implementing the customized welfare system constitutes ordinary wages.
However, considering comprehensively the grounds for the customized welfare system, the circumstances of its introduction, the fact that the use and period of use of welfare points are restricted, and the characteristic that unused welfare points do not carry over but rather expire, all of which may be ascertained from the reasoning of the judgment below and the record, the amount equivalent to welfare points was not paid as consideration for work and thus does not constitute wages under the Labor Standards Act (근로기준법), and consequently cannot be included in ordinary wages either (see Supreme Court en banc Decision 2016Da48785, decided August 22, 2019).
Accordingly, the court below erred in holding that the amount equivalent to welfare points constitutes ordinary wages serving as the basis for calculating childcare leave benefits.
B. According to the reasoning of the judgment below and the record, the court below also determined that it was unlawful for the Defendant to have failed to include bonuses, etc., in addition to the amount equivalent to welfare points, in ordinary wages, and accordingly revoked the disposition at issue; the Defendant did not raise this point as a ground of appeal, and no materials were submitted, up to the close of the argument before the court below, that would allow the calculation of the amount of childcare leave benefits based on ordinary wages including the amount equivalent to welfare points or bonuses, etc. Accordingly, it is impossible to calculate the ordinary wages and the resulting childcare leave benefits when only bonuses, etc. are added, nor to calculate the “legitimate unpaid amount of childcare leave benefits,” which is the remainder after subtracting the childcare leave benefits already paid to the Plaintiff.
Given these circumstances, since bonuses, etc. constitute ordinary wages, the disposition at issue, which was based on the view that the Plaintiff had already been paid the full amount of childcare leave benefits despite having received only benefits calculated excluding bonuses, etc., is unlawful. The materials submitted up to the close of argument before the court below are insufficient to calculate the “legitimate unpaid amount of childcare leave benefits,” and the court bears no obligation to calculate that amount through its own ex officio investigation. In such a case, the disposition at issue must be revoked in its entirety (see, e.g., Supreme Court Decision 94Nu13527, decided April 28, 1995).
C. Therefore, although there are some inappropriate aspects in the reasoning of the judgment below, the conclusion of the court below revoking the disposition at issue in its entirety is justified, and it is difficult to find that there was an error, as alleged in the grounds of appeal, of misunderstanding the legal principles concerning ordinary wages such as would have affected the judgment.
3. Conclusion
Therefore, the appeal is dismissed, and the costs of the appeal are to be borne by the losing party. This Decision is rendered by the unanimous opinion of the Justices participating in the adjudication, as stated in the Order.
Justices Min Yu-sook (Presiding Justice), Cho Jae-yeon, Lee Dong-won, Cheon Dae-yeop (Justice in Charge)