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TITLE 【Syllabus of Latest Opinion】 Supreme Court Decision 2016Da239024, 239031, 239048, 239055, 239062 decided May 14, 2020 【Confirmation of Employee Status, etc.; Confirmation of Employment Status, etc.; Confirmation of Employee Status, etc.; Confirmation of Employment Status, etc.; Confirmation of Employment Status, etc.】 [full Text]
Summary
[1] In a case where an original employer makes a worker to perform tasks for a third party, standards for determining whether such case constitutes “temporary placement of workers” subject to the application of the Act on the Protection, etc. of Temporary Agency Workers
[2] In a case where Party A, etc., hired as a highway patrol officer by an outsource company that concluded a service agreement with the Korea Expressway Corporation (KEC) on highway safety patrol work, brought an action against the KEC for confirmation of employee status, the case upholding the lower judgment that affirmed the existence of a labor dispatch relationship between Party A, etc. and the KEC inasmuch as Party A, etc., upon their employment by an outsource company, engaged in work for the KEC at the workplace occupied by the KEC under the supervision and instruction of the KEC, while maintaining an employment relationship
[3] In a case where a user company does not perform its duty to directly employ workers stipulated in Article 6-2(1)1 or Article 6-2(1)5 of the Act on the Protection, etc. of Temporary Agency Workers, whether a temporary agency worker has a legal right to seek a judgment that acts in lieu of a declaration of intention to employ against the user company (affirmative), and whether a direct employment relationship is established between the user company and the temporary agency worker upon finalization of the judgment (affirmative)
[4] In a case where a temporary agency worker either resigns or is fired in his or her relationship with a temporary work agency after a user company’s duty to directly employ takes effect, whether such circumstance affects the legal relationship between the user company and the temporary agency worker concerning the duty to directly employ (negative in principle), and whether it is possible to readily determine the circumstance that the temporary agency worker declared an intention to resign with the intention to terminate the employment relationship with the temporary work agency as constituting “where the relevant temporary agency worker clearly expresses his/her dissenting opinion” in Article 6-2(2) of the Act on the Protection, etc. of Temporary Agency Workers (negative)
[5] In a case where a user company knew or could have known that a temporary agency worker and a worker compared with the said temporary agency worker perform similar if not the same tasks, yet it made the temporary agency worker receive lesser wages compared to the worker compared with the said temporary agency worker by participating in or wielding influence over the determination of the temporary agency worker’s wage, thereby discriminating against the temporary agency worker without reasonable grounds, whether the user company bears compensation liability for wage discrimination (affirmative)
In such instance, meaning of “cases where there exist no reasonable grounds” and method of determining whether there are reasonable grounds
Whether this legal principle flatly applies to a labor dispatch relationship forged in violation of the Act on the Protection, etc. of Temporary Agency Workers (affirmative)
[6] Whether a temporary agency worker may file a claim against a user company for damages equivalent to wages that he or she could have received starting the date on which the duty to directly employ takes effect until the establishment of a direct employment relationship had the said temporary agency worker been directly employed by the user company (affirmative)
[7] In a case where: (a) after a user company’s duty to directly employ took effect, a temporary agency worker suspended providing labor, for example, by resignation; and (b) it can be assessed that even if the user company performed the duty to directly employ, the temporary agency worker would have not provided labor, whether the temporary agency worker may claim damages for the user company’s non-performance of the duty to directly employ
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