[Plaintiffs, Appellees] Plaintiff 1 and 628 others (as listed in Attachment 1, List of Plaintiffs) (Counsel for the plaintiffs: Kim Ki-deok and 3 others)
[Defendant, Appellant] Hyundai Steel Co., Ltd. (Counsel for the defendant: Yulchon LLC, Attorney Kim Neung-hwan and 3 others)
[Judgment Below] Seoul High Court Decision 2018Na2072193 decided January 12, 2022
[Order]
Among the portions of the judgment below in which the Defendant lost, the portion concerning the claims for the difference in retirement allowance by the plaintiffs listed in Attachment 2 (List of Persons Who Received Interim Settlement of Retirement Allowance) is reversed, and this portion of the case is remanded to the Seoul High Court. The remainder of the appeal as to the plaintiffs listed in Attachment 2 (List of Persons Who Received Interim Settlement of Retirement Allowance) and the appeal as to the remaining plaintiffs other than the said plaintiffs are all dismissed. The costs of the appeal as to the remaining plaintiffs other than the plaintiffs listed in Attachment 2 (List of Persons Who Received Interim Settlement of Retirement Allowance) shall be borne by the Defendant.
[Reasoning] The grounds of appeal (including the supplementary brief on grounds of appeal submitted after the filing period, to the extent it supplements the original grounds) are examined as follows.
1. As to the grounds of appeal other than the 10th ground of appeal
A. Judgment of the court below
The court below, for the reasons stated in its judgment, determined as follows.
1) The fixed portion of the regular bonus at issue in this case, which is paid regularly and continuously at a rate of 800% per year pursuant to the collective bargaining agreement (단체협약) and the Defendant's rules of employment (취업규칙) at issue in this case, may be regarded as having its payment fixed merely by the provision of prescribed work, and thus constitutes ordinary wages (통상임금). The Defendant's argument that the portion of the fixed portion of the regular bonus calculated based on Supplementary Allowance 1, Supplementary Allowance 2, and the family allowance (family portion), as well as the variable portion of the regular bonus, should be deducted, is without merit.
2) The monthly holiday allowance and public holiday allowance also constitute statutory allowances that must be recalculated, and the Defendant must pay the difference between these allowances calculated on the basis of the recalculated ordinary hourly wage. Furthermore, since the evidence submitted by the Defendant is insufficient to find that resident workers were given a substantively meaningful one-hour rest period, the Defendant must pay the difference in overtime allowance calculated on the basis of the recalculated ordinary hourly wage in this regard as well.
3) Supplementary Allowance 1 and the physical fitness allowance constitute wages paid continuously and regularly to the Defendant's employees pursuant to the collective bargaining agreement and labor-management agreement at issue in this case, and thus must be included when calculating average wages (평균임금).
4) The plaintiffs who are full-time time-off employees (풀타임근로시간면제자) may also claim unpaid night work allowance based on the recalculated ordinary wages, in the same manner as the other plaintiffs.
5) The Defendant's defense that the plaintiffs' claim for unpaid wages and retirement allowance premised on the regular bonus constituting ordinary wages is an exercise of rights in violation of the principle of good faith and should not be permitted, is without merit.
B. Judgment of the Supreme Court
Upon examining the reasoning of the judgment below in light of the relevant legal principles and the record, there is no error in the above determination of the court below, such as failure to exhaust deliberation, misapprehension of legal principles, violation of the rules of evidence, or omission of judgment concerning the calculation of ordinary wages and average wages, as alleged in each ground of appeal.
2. As to the 10th ground of appeal
A. Relevant legal principles
The total amount of wages that forms the basis for calculating average wages includes all money and valuables paid by the employer to the employee as consideration for work, which are paid continuously and regularly to the employee and for which the employer is obligated to pay under a collective bargaining agreement, rules of employment, or the like, regardless of their name; this includes not only the amount actually paid to the employee but also the amount that the employer is obligated to pay as of the time the cause for calculating average wages arises (see Supreme Court Decision 2001Da16722 decided June 11, 2002; Supreme Court Decision 2004Da41217 decided September 9, 2005; Supreme Court Decision 2022Du64518 decided April 13, 2023, etc.). However, money and valuables for which the occurrence of the cause for payment has not been determined are not included. Therefore, unless otherwise provided by a collective bargaining agreement, rules of employment, or the like, money and valuables for which the occurrence of the cause for payment had not been determined as of the time of the interim settlement of retirement allowance (퇴직금 중간정산) cannot be included in the average wage for the purpose of calculating the interim settlement retirement allowance.
B. Judgment of the court below
The court below, for the reasons stated in its judgment, determined that, with respect to the plaintiffs listed in Attachment 2 (List of Persons Who Received Interim Settlement of Retirement Allowance) who received interim settlement retirement allowance, the unreflected annual leave allowance at issue in this case—namely, the portion of the annual leave allowance paid in the following year as compensation for work performed in the year in which the interim settlement occurred, corresponding to the three-month period used to calculate average wages for the plaintiffs—must be included when calculating average wages.
C. Judgment of the Supreme Court
However, in light of the legal principles set forth above and the record, the allowance for unused annual paid leave (연차휴가미사용수당), which arises from the failure to use annual paid leave earned through work performed during the average wage calculation period forming the basis of the interim settlement retirement allowance, had not yet had its occurrence determined at the time of the interim settlement of retirement allowance. Therefore, unless otherwise provided by a collective bargaining agreement, rules of employment, or the like, it cannot be included in the average wage for the purpose of calculating the interim settlement retirement allowance. Nevertheless, the court below, for the reasons stated in its judgment alone, recognized the amount of the allowance for unused annual paid leave, the occurrence of which had not been determined at the time of the interim settlement, as the unreflected annual leave allowance at issue in this case, and included it in the average wage forming the basis for calculating the interim settlement retirement allowance. Such determination by the court below contains an error that misapprehends the legal principles concerning the calculation of average wages, as alleged in the grounds of appeal, and this error affected the judgment.
3. Conclusion
Among the portions of the judgment below in which the Defendant lost, the portion concerning the claims for the difference in retirement allowance by the plaintiffs listed in Attachment 2 (List of Persons Who Received Interim Settlement of Retirement Allowance) is reversed, and this portion of the case is remanded to the court below for further hearing and determination. The remainder of the Defendant's appeal as to the plaintiffs listed in Attachment 2 (List of Persons Who Received Interim Settlement of Retirement Allowance) and the Defendant's appeal as to the remaining plaintiffs other than the said plaintiffs are all dismissed, and the costs of the appeal as to the said remaining plaintiffs shall be borne by the losing party. This Judgment is rendered as stated in the Order by the unanimous opinion of the participating Justices.
[Attachment 1] List of Plaintiffs: Omitted
[Attachment 2] List of Persons Who Received Interim Settlement of Retirement Allowance: Omitted
Justice Seo Gyeong-hwan (Presiding Justice), Kim Seon-su, Noh Tae-ak (Justice in Charge), Oh Kyung-mi