본문 바로가기 주메뉴로 바로가기
All
TITLE Supreme Court en banc Decision 2016Da13437 Decided November 26, 2020【Violation of the Duty of Preferential Reemployment, etc.】 [full Text]
Summary
[1] In a case where an employer seeks to hire an employee who will perform the same task as was done by a dismissed employee at the time of dismissal within the period of three years from the day on which the employer fired the dismissed worker pursuant to Article 24 of the Labor Standard Act, whether the employer has a duty to offer preferential reemployment to the dismissed employee (affirmative in principle), and in such a case, where the employer hired a third person without confirming the dismissed employee’s intention to enter into an employment contract, whether the employer in such a case violated the duty of preferential reemployment prescribed in Article 25(1) of the Labor Standard Act (affirmative in principle)
[2] In the case where: (a) Party A worked as a rehabilitation teacher at the welfare facility for people with disabilities, run by Foundation B, and was laid off for managerial reasons; (b) Foundation B hired rehabilitation teachers several times within the period of three years from Party A’s dismissal, but it neither notified Party A of the recruitment nor confirmed Party A’s intention to re-enter into an employment contract; and (c) the point of time at which Foundation B violated the duty of preferential reemployment stipulated in Article 25(1) of the Labor Standard Act was disputed, the case holding that Foundation B’s duty to offer preferential reemployment came into effect, at the latest, around the time when it hired the second person for the role of rehabilitation teacher providing life support service, which had been performed by Party A at the time of his dismissal
[3] In a case where the employer does not perform the duty to offer preferential reemployment prescribed in Article 25(1) of the Labor Standard Act, whether the dismissed employee is legally entitled to seek a judgment against the employer in substitution for the declaration of intention to offer employment (affirmative), and whether the employment relationship is established between the employee and the dismissed worker when such a judgment becomes final and conclusive (affirmative)
In such an instance, whether the dismissed employee is entitled to file a claim for damages for the employer’s noncompliance with the duty of preferential reemployment for lost wages arising from the time at which the employer’s duty of preferential reemployment came into effect until the establishment of the employment relationship (affirmative)
[4] In a case where: (a) the dismissed employee files a claim for damages, on account of the employer’s noncompliance with the duty of employment, the amount of which commensurate with the amount of wages that the employee could have received had the employer performed its duty of employment; and (b) if a considerable causal relationship between the benefits accrued by the employee by performing work for other workplaces and the employer’s noncompliance with the duty of employment is recognized, whether the said benefits ought to be deducted when calculating the amount of damages (affirmative)
In such an instance, whether the provision on shutdown allowances stipulated in Article 46 of the Labor Standards Act is applicable (negative)
Prev Supreme Court Decision 2020Do10729 Decided November 26, 2020 【Violation of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes (Taking Pictures by Using Camera, etc.)】
Next Supreme Court Decision 2017Du70793 Decided November 26, 2020 【Revocation of Readjudication on Relief Request for Unfair Dismissal】
219 Seocho-ro,Seocho-gu,Seoul 06590,Republic of Korea 02-3480-1100