Failure to apply written notice to refusal of fixed-term renewal, contrary to social justice

Target judgment: Supreme Court sentenced on Oct. 28, 2021

▲ Attorney Park Sang-jin / Certified Labor Attorney (Wukong Law Firm)

1. Summary of the case

The plaintiff’s company is a corporation that conducts apartment management business, etc., and security guard worker A has a contract with the plaintiff’s company from August 14, 2018 to September 13, 2018 and from September 14, 2018 to December 31, 2018. B, security guard worker B signed a labor contract 11 times in 2-month or 6-month increments from January 10, 2015, and finally signed a labor contract from October 1, 2018 to December 31, 2018. . On December 30, 2018, the plaintiff company notified workers A and B of the termination of the contract due to the expiration of the labor contract period on the 31st of the same month.

In the first trial, the Seoul Administrative Court said, “The right to expect the renewal of the labor contract is recognized, but considering the unkind words and behavior towards the residents and the resulting complaints, the plaintiff’s company has a reasonable reason to refuse to renew the labor contract, so the refusal to renew is justified.” The decision of the Central Labor Relations Commission was reversed. In the appeals trial, the workers (assistant participants of the defendant) newly argued that the notice of expiration of the labor contract by the plaintiff company violated Article 27 of the Labor Standards Act (written notice of grounds for dismissal, etc.), but it was not accepted and the appeal was dismissed. On October 28 this year, the Supreme Court also made a ruling (hereinafter referred to as ‘target judgment’) dismissing the appeal of the defendants with the same purpose.

2. Issues and gist of the target judgment

go. The issue of the target judgment

‘Whether or not Article 27 of the Labor Standards Act, that is, the obligation to notify in writing of the reasons and timing of refusal to renew, applies even if the employer gives notice of refusal to renew after the fixed-term employment contract is terminated.

me. The gist of the target judgment

The target judgment held that ‘Article 27 of the Labor Standards Act does not apply’ for the following reasons.

○ In principle, fixed-term workers are naturally retired upon expiration of the term, and if the right to expect renewal of the employment contract is recognized, the employer’s unreasonable refusal to renew the contract without a reasonable reason is ‘exceptionally invalid’. Therefore, the employer’s refusal to renew upon termination of a fixed-term employment contract is distinct from dismissal in which the employer unilaterally terminates the employment relationship regardless of the employee’s will, and it can be evaluated that the employee’s trust or expectation for the continuation of the employment relationship is the same. there is no

○ Since a fixed-term employment contract is naturally terminated when the period expires, the necessity to clarify the existence and timing of refusal to renew, and the reason for it, is not as great as in the case of dismissal. It is difficult to believe that Article 27 of the Labor Standards Act was intended to be complied with until a notice of refusal to renew after the labor contract is terminated.

3. Review of the target judgment

go. analogy application of law

It cannot be denied that the ‘dismissal’ prescribed in Article 27 of the Labor Standards Act does not include ‘refusal to renew after the expiry of a fixed-term employment contract’. This is because ‘dismissal’ refers to ‘unilateral termination of the contract by the employer during the contract period in an unspecified employment contract or in a fixed-term employment contract’. However, in cases where realistic legal disputes cannot be resolved by only the literal or logical interpretation of the positive law provisions of the Civil Act, or if the result is significantly contrary to the notion of social justice, the court will rationally resolve the legal dispute by utilizing the legislative spirit of the positive law and rationalize the concept of justice. ‘Applying the law by analogy’ can be used to derive a suitable result. For such an analogy, there must be commonalities or similarities between a case without legal regulation and a case with legal regulation, and the application of analogy must be evaluated as justifiable in light of the legal norm system, legislative intent and purpose, etc. (Supreme Court 2020. 4. 29. Sentencing 2019da226135 (see Judgment)

Then, the issue of the target judgment should ultimately be whether Article 27 of the Labor Standards Act can be ‘applied by analogy’ to the refusal to renew a fixed-term employment contract.

Although the target judgment did not mention ‘the analogical application of the law’, it concluded that Article 27 of the Labor Standards Act could not be applied because ‘refusal to renew a fixed-term employment contract’ cannot be evaluated in the same way as dismissal. It is a result of focusing on ‘differences and differences’ rather than ‘common points or similarities’ between the two. However, both have in common or are essentially similar in many respects as follows. Therefore, it is considered that the target judgment is in error by misunderstanding Article 27 of the Labor Standards Act and the jurisprudence of analogy application of such provisions.

me. Injustice of the target judgment

1) The target judgment has a fatal error in setting the target of comparison incorrectly. In other words, the target judgment set ‘termination of contract due to expiration of term in all fixed-term employment contracts’ as the target for comparison with ‘dismissal’. However, regarding the application of Article 27 of the Labor Standards Act, comparisons with dismissal should be limited to ‘fixed-term labor contracts in which the right to expect renewal is recognized’, not ‘all fixed-term employment contracts’. For fixed-term labor contracts in which the right to expect renewal is not recognized, there is no need to determine whether the refusal to renew is justified. Therefore, since there is nothing in common with ‘dismissal’, it is not the subject of discussion from the beginning.

2) As long as the scope is narrowed down to ‘fixed-term labor contracts with the right to expect renewal,’ the conclusion of the target judgment is no longer maintained. This is because the established position of the Supreme Court precedent is that if the right to expect renewal of the employment contract is recognized, the employer’s refusal to renew the contract without a reasonable reason is ‘like an unfair dismissal’. Furthermore, the Supreme Court says that the ‘reasonable reason for refusal of renewal’ is also the burden of proof on the employer as with ‘reasonable reason for dismissal’. In other words, the effect of refusal of renewal is recognized only when the user “successfully proves that there is a reasonable reason for refusal of renewal”. As such, the two are essentially similar.

3) The target judgment is also against equity with the Supreme Court precedent (Supreme Court decision 2015du48136 sentenced on November 27, 2015) that ‘Article 27 of the Labor Standards Act applies even if a person refuses to be hired after the trial period has expired’. This is because ‘refusal of main employment after the trial period has expired’ and ‘refusal to renew a fixed-term employment contract in which the right to expect renewal is recognized’ are virtually identical in terms of justification requirements. The former requirement of legitimacy suggested by the Supreme Court precedent is ‘the case where there is an objectively reasonable reason and it is recognized as reasonable in terms of social common sense’. The justification requirement for the latter is ‘when the reasons and procedures for refusal of renewal are objective, reasonable and fair in terms of social norms’. The two are very similar in that it is a somewhat relaxed requirement rather than a ‘just cause’ of dismissal. This is a result of considering the fact that ‘a trial contract is a contract in which the right to cancel the contract is reserved for the employer’ and that ‘a fixed-term employment contract is naturally terminated upon the expiry of the term’.

4) In relation to the legislative purpose and purpose of Article 27 of the Labor Standards Act, ‘the need to clarify the existence, timing and reason of refusal of renewal’ is rather a case of refusal to renew in a fixed-term employment contract rather than a case of refusing main employment after the expiration of the trial period. is more desperately needed Since the purpose of the trial is to determine the ‘work competency, qualifications, etc.,’ of a worker, it is not easy to assume any reason other than ‘lack of work qualification’ as the reason for refusal of the main employment due to the nature of the trial. However, the reasons for refusing to renew a fixed-term employment contract are very diverse, just like the ‘just cause for dismissal’. Not only disciplinary reasons, but also personal reasons such as lack of work ability or managerial reasons such as the abolition of the affiliated department are possible. Therefore, unless the employer notifies the reason for refusal of the renewal, it is difficult for the worker to easily know for what reason the renewal of the employment contract was rejected.

5) On the other hand, the lower court judgment (appeals court) of the target judgment stated, “In a state where even the recognition of the right to expect renewal is not clear, the employer is burdened with excessive obligations. It is unreasonable because there is a high risk that it will result in a de facto coercion to comply.” However, it is an extremely natural and unavoidable phenomenon in consideration of the generality and abstraction of the law that the legal obligations are recognized ex post due to litigation, etc., in a state where it is unclear whether the legal requirements that give rise to legal obligations are met. Therefore, to say that analogy application cannot be applied for this reason is equivalent to denying analogy application itself. Whether or not a law is applied by analogy is judged on the basis of ‘whether there are commonalities or similarities between a case without legal regulation and a case with legal regulation, and whether the application of analogy is evaluated as justified in light of the system of legal norms, the legislative intent and purpose, etc.’ should be

6) Although this ‘refusal to renew when the right to expect renewal of a fixed-term labor contract is recognized’ is essentially similar to dismissal (especially refusal of main employment after the expiration of the trial period), however, it does not apply Article 27 of the Labor Standards Act only by interpreting the provisions of the positive law. This would be said to be markedly contrary to the notion of social justice. Therefore, applying Article 27 of the Labor Standards Act by analogy to ‘refusal of renewal in cases where the right to expect renewal of a fixed-term employment contract is recognized’ corresponds precisely to ‘a case where analogy application is justified’ in light of the legislative intent and purpose.

Reference-www.labortoday.co.kr

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