[Plaintiff, Appellant] Plaintiff (Attorneys Hwang Ho-seong and 2 others, Counsel for the Plaintiff)
[Defendant, Appellee] Defendant (Attorney Jang Gyu-bae of J&Y Law LLC, Counsel for the Defendant)
[Judgment Below] Seoul Southern District Court Decision 2022Na54724 dated August 17, 2023
[Order]
The part of the judgment below concerning the plaintiff's loss on the claim for retirement allowance is reversed, and this part of the case is remanded to the Seoul Southern District Court. The remainder of the plaintiff's appeal is dismissed.
[Reasoning]
The grounds of appeal (including the reference briefs submitted after the deadline, to the extent they supplement the grounds of appeal) are examined.
1. As to the First Ground of Appeal
The court below, for the reasons stated in its judgment, found that the plaintiff and the defendant had entered into an agreement not to file suit regarding wages for November 2016, and accordingly dismissed the corresponding part of this lawsuit. Upon examining the reasoning of the judgment below in light of the relevant legal principles and the record, the judgment of the court below contains no error, as alleged in the grounds of appeal, in misunderstanding the legal principles concerning agreements not to file suit, in misapprehending the facts due to a violation of the rules of evidence, or in failing to conduct the necessary examination.
2. As to the Second Ground of Appeal
A. "A business or workplace that ordinarily employs five or more workers" under Article 11(1) of the Labor Standards Act (근로기준법) does not mean "a business or workplace where the number of workers ordinarily working is five or more," but rather "a business or workplace where the number of workers employed is ordinarily five or more." In this context, "ordinarily" means a state of habitual condition; therefore, even if the number of workers occasionally falls below five, if the number is habitually five or more when objectively assessed according to social norms, this requirement is satisfied (see Supreme Court Decision 99Do1243 dated March 14, 2000; Supreme Court Decision 2008Do364 dated March 27, 2008, among others).
In light of this purpose, a weekly holiday is a day on which there is no obligation to work, guaranteed as a holiday at least once a week pursuant to Article 55(1) of the Labor Standards Act. Therefore, a worker who did not actually work on a weekly holiday should not be included in the "total number of worker-days used during the calculation period" under Article 7-2(1) of the Enforcement Decree of the same Act, or in the "daily number of workers" under each item of paragraph (2) of the same Article, which serve as the basis for calculating the "number of workers ordinarily employed" under Article 11(3) of the Labor Standards Act (see Supreme Court Decision 2020Do16228 dated June 15, 2023).
In this regard, not only in cases where the dates or days of the week on which monthly or weekly days off occur are fixed and the number of days off is constant, but also in cases where workers take their days off on a rotating basis on a monthly or weekly cycle such that the dates or days of the week on which days off occur, as well as the number of days off, vary, if a worker did not actually work on a "day on which there is no work obligation guaranteed as a holiday" under the Labor Standards Act or an employment contract, etc., such day shall likewise not be included in the "total number of worker-days used during the calculation period" or the "daily number of workers."
B. The court below, for the reasons stated in its judgment, determined, on the premise that a worker who did not actually work on a day on which there was no work obligation guaranteed as a holiday should not be included in the total number of worker-days and the daily number of workers, which serve as the basis for calculating the number of workers ordinarily employed, that the motel in this case did not constitute a workplace ordinarily employing five or more workers, and therefore the provisions of the Labor Standards Act concerning extra pay for extended, night, and holiday work, among others, did not apply.
Upon examining the reasoning of the judgment below in light of the legal principles set forth above and the record, the judgment of the court below contains no error, as alleged in the grounds of appeal, in misunderstanding the legal principles concerning the criteria for determining a business or workplace that ordinarily employs five or more workers and the burden of proof therefor, in misapprehending the facts due to a violation of the rules of evidence, or in failing to conduct the necessary examination.
3. As to the Third Ground of Appeal
A. The court below, treating the plaintiff as having reduced the amount claimed for retirement allowance to KRW 3,847,909, recognized only up to the scope of KRW 3,847,909 the recalculated retirement allowance of KRW 5,246,536, which reflected the additional wages for work during rest periods, and calculated the amount of retirement allowance to be paid by the defendant by subtracting from that amount the retirement allowance of KRW 3,545,260 already paid.
B. However, according to the record, the plaintiff, in the brief dated December 17, 2021, calculated the amount of retirement allowance as KRW 7,393,169, and calculated the remaining amount, after deducting the retirement allowance of KRW 3,545,260 already received, as KRW 3,847,909; and in the brief dated April 17, 2023, the plaintiff explicitly stated that the plaintiff was maintaining the cause of claim as stated in the brief dated December 17, 2021.
Therefore, there is substantial room to interpret the plaintiff's assertion regarding the claim for retirement allowance not as an intention to reduce the amount claimed to KRW 3,847,909, but rather as an assertion that a right to claim retirement allowance in the amount of KRW 7,393,169 had arisen, and that, while acknowledging the fact that KRW 3,545,260 thereof had already been received, the plaintiff was claiming only the remaining amount after deducting that sum.
C. Given this, the court below should have properly ascertained and examined whether the plaintiff's claim for retirement allowance was a claim for the remainder after deducting the retirement allowance already received from the recognized amount of retirement allowance, or whether it was intended as a reduction of the claimed amount of retirement allowance itself. Accordingly, the judgment below contains an error of failing to conduct the necessary examination, which affected the judgment.
4. Conclusion
The part of the judgment below concerning the plaintiff's loss on the claim for retirement allowance is reversed, and this part of the case is remanded to the court below for retrial and determination, and the remainder of the plaintiff's appeal is dismissed. This judgment is rendered as set forth in the Order, by the unanimous opinion of the Justices participating in the decision.
Justice Seo Gyeong-hwan (Presiding Justice), Kim Seon-su, Noh Tae-ak (Justice in charge), Oh Kyung-mi