Cows are raised by farmers

▲ Attorney Myung-Ho Son (Owol, Law Firm)

City bus driver Minsu has never been late or absent from work in the 20 years since joining the company. He was an exemplary employee who never had a car accident or received any disciplinary action. He was fired last year for saying, “I want to rest during the Lunar New Year holiday.” He just said he needed a break because of a herniated disc he got from driving for a long time and wanted to spend the holidays with his family, but the company fired Mr.

The company’s employment rules and labor-management collective agreement stipulate that ‘Paid holidays are given on Lunar New Year’s Day, the day before and the day after’. Mr. Minsu only took a paid holiday guaranteed by collective bargaining (the day he decided to rest), but was fired. Is this dismissal justified?

The court paid attention to the provisions in the company’s employment rules that ‘an employee may order to work on holidays according to business necessity, and an employee cannot refuse it unless there is a special circumstance that requires urgency due to the special nature of the public transportation business’. Accordingly, the company may order holiday work as necessary for business, and the method of designating holiday workers set by the company cannot be regarded as unreasonable. Even if Minsu notified the company 5 days before the departure date for the Lunar New Year holiday, it would be an unexcused absence unless the company’s approval was obtained. Because there was no unavoidable hospital treatment schedule, it was judged that the reason that the company had a back pain or needed time with family was not a justifiable reason to refuse the company’s order to work on holidays.

Paid holidays guaranteed by collective bargaining have become a staple in the picture due to the employment rules unilaterally set by the company, and it is no longer possible to refuse to work on holidays unless surgery is performed. The plain and universal feelings of needing a break because of illness or wanting to be with family on holidays were rejected by the court.

Minsu appealed. The Labor Standards Act prohibits forced labor (Article 7), and overtime work is permitted only with an agreement between the parties (Article 53). The Supreme Court held that an agreement on overtime between the parties meant an individual agreement between the employer and the worker, and that an agreement on overtime by a collective agreement was possible only to the extent that it did not deprive or limit the right of individual workers to agree on overtime. The company has set the Lunar New Year holiday as a paid holiday through the labor contract and collective agreement. Since the prescribed working hours were set at 8 hours a day and 40 hours a week, we argued that as long as Mr. Min-soo worked the prescribed working hours, he could not be forced to work overtime (holidays) beyond these without individual consent.

Furthermore, the collective bargaining agreement states, ‘When an employee does not comply with holiday work for justifiable reasons, it cannot be disadvantaged. However, disciplinary action may be taken if the company intentionally causes trouble, such as avoiding the last train. This emphasized that workers can only be disciplined ‘exceptionally’ only if they intentionally cause disruption to the company, such as avoiding the last train, and should be interpreted as not being able to take disadvantageous measures even if they refuse to work on holidays for other reasons. The Supreme Court also held that the collective bargaining agreement cannot be interpreted unfavorably to the workers, so the above collective agreement rules, as the company claims, ‘workers must comply with the employer’s instructions to work on holidays and can only be exempted from work obligations when there is a justifiable reason’ and could not be interpreted. If it is according to the judgment of the court of first instance, the company can force the company to work on holidays indefinitely as long as it is necessary for business, and the worker cannot refuse it unless there are unavoidable circumstances such as a hospital treatment schedule. It is, in effect, compulsory to work on holidays.

The court doesn’t know who was worried about who would raise the cows if all the drivers refused to work on holidays like Minsu did. Thanks to the court’s concerns, the company did not need to secure a replacement manpower to work on holidays, and it was enough to force workers who were on holiday to work on holidays. Workers who could not rest properly even on holidays suffered from a herniated disc and were separated from their families, but for that reason, they have no choice but to be fired if they take a break.

In a society governed by the rule of law, the courts are only just when they are based on the law and common sense. Please leave the worries of raising cattle to the farmer. Please pay attention to the workers who insist on the right to rest and the simple common sense of wanting to rest when sick and to be with their families on holidays.

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