Industrial Accident Compensation

Chapter 2. Criteria for Determining an Incident as an Industrial Accident/Illness and related Cases

Section 3. Death from Overwork, related Verifications and Cases (Heart Attack, Stroke, Suicide, etc.) - Ⅳ. KTX Train Driver Dies of Heart Attack

Ⅳ. KTX Train Driver Dies of Heart Attack
- An Industrial Accident where a Labor Union Officer’s Unpaid Union Activities Were Recognized as Performance of Work


KTX train driver has heart attack (Recognized as a work-related accident)
Seoul High Court ruling on June 26, 2022, 2021nu70310.


The deceased employee was hired by Korea Railroad Corporation on December 11, 1990 and worked as a KTX train driver from the Seoul Office from January 2, 2006. The employee was found dead at his home on January 24, 2018 at 23:30. The cause of death was presumed to be a heart attack (acute cardiac arrest) as a result of an autopsy analysis conducted by the National Institute of Forensic Sciences. His surviving family claimed that the death was an occupational accident in an industrial accident application submitted to the Employee Welfare Corporation (EWC) on July 2.


According to the EWC on February 1, 2019, the employee’s working hours were 38 hours and 56 minutes during the one week before his death, an average of 42 hours and 21 minutes per week for the 4-week period prior to his death, and an average of 36 hours and 28 minutes per week during the 12-week period before death, none of which met the short-term and chronic overwork criteria from the Ministry of Employment and Labor. ② Shift work was performed, but was scheduled one month in advance. ③ When the victim worked at night, he was given lengthy time off, such as two or three days off beginning the day following the night shifts. ④ The surviving family’s application for survivors' benefits and funeral expenses was rejected on the grounds of the decision by the EWC’s Occupational Illness Determination Committee, which stated that it was difficult to recognize a causal relationship between the work and death of the employee, as they could not find any sudden circumstances that could potentially lead to death.


In determining the death of the KTX driver was due to overwork, and therefore an occupational accident, the court’s ruling was based not only on whether the incident occurred during working hours but also the special working conditions of the deceased and the union activities he was involved in as a union officer. The employee worked an average of only 42 hours per week over the 4 weeks prior to his death, but those hours involved more than the normal high-speed train drivers’ average of 36 hours per week over a similar 4 week period. Working environment factors also need to be considered, such as the number of night or irregular shifts, and tension and noise in the driver’s cab arising from the high-speed train's single-driver situation and high-speed operations. In particular, the employee had attended a regularly-scheduled two-day union officers’ workshop the day before he died. At the same time, on the day of his death, the employee had been involved in preparing the work shift schedule for union members at his home, and, as the labor union's safety officer, also protested to the company’s operations manager regarding the disciplinary action against a union member.
A. Introduction

Although the working hours do not meet the standards for recognition of an industrial accident due to overwork, a ruling has been issued that recognizes the unofficial union activities of union officers as work on behalf of the company. In considering the court rulings and administrative judgments so far, only the union activities of paid full-time union officers have been recognized as the company’s work, but the unpaid union activities have not been considered directly related to the union members work for the company. Therefore, this case of acknowledging work for unpaid union activities as part of the work for the company is a meaningful judgment that can be referenced in similar cases in the future. This means that union officers’ union activities are recognized as a part of the company's internal HR management.
In this industrial accident case in which union officers' unpaid union activities were recognized as work performance, I would like to review the reasons why the Korea Employee Welfare Corporation (hereinafter referred to as the “EWC”) rejected the application for this industrial accident and how the court came to recognize the incident as related to work.

B. Details on Recognition of the Case as an Industrial Accident Seoul Administrative Court ruling on Oct. 27, 2021: 2019guhap86761.


1. The EWC’s reasons for rejection
The victim was hired by Korea Railroad Corporation on December 11, 1990 and worked as a KTX train driver from the Seoul Office from January 2, 2006. The victim was found dead at his home on January 24, 2018 at 23:30. The cause of death was presumed to be a heart attack (acute cardiac arrest) as a result of an autopsy analysis conducted by the National Institute of Forensic Sciences on the corpse of the victim. His surviving family claimed that the death of the victim was an occupational accident in the industrial accident application to the Welfare Agency on July 2.
According to the EWC on February 1, 2019, the working hours of the victim were on average 38 hours and 56 minutes one week before death, 42 hours and 21 minutes per week for the 4 week period previous to death, and 36 hours and 28 minutes per week for the 12 week period before death, none of which met the short-term and chronic overwork criteria from the Ministry of Employment and Labor. Brain stroke and heart disease (Ministry of Employment and Labor Notice No. 2017-117, issued on Dec. 29, 2017).
② Shift work was performed, but shift work was scheduled one month in advance. ③ When the victim worked at night, he was given long holidays, such as two or three days off beginning the following day after the night shifts. ④ The surviving family’s application for survivors' benefits and funeral expenses were rejected on the grounds of the decision by the EWC’s Occupational Illness Judgment Committee because they stated that it was difficult to recognize a causal relationship between the work and death of the victim, as they could not find any sudden circumstances that could lead to death.

2. Claims of the surviving family
The victim was a KTX train driver and performed irregular shift work according to the shift work schedule. The shift work was assigned on a six-day rotation, consisting of “day – day – night - night & morning work – off-day - holiday.” As the working day is calculated as eight hours, when it is calculated for four weeks, drivers work 18 days, with an average of 36 hours per week.
In addition, as the vice-chairman of the Seoul KTX labor union branch and the union officer in charge of occupational safety and health (hereafter referred to as “the Safety Officer”), the victim additionally performed union duties. By the time of his death, it was not easy to review and confirm the shift work schedule due to the Lunar New Year holidays and the Pyeongchang Olympics. Also the victim had not suffered from any particular illness prior to his death. Taking these circumstances into account, it is reasonable to view that the victim had a heart attack due to work-related overwork and stress.

3. Judgment of the Seoul Administrative Court
(1) Working hours: The working hours of the victim are 38 hours 56 minutes in the week just before death, 42 hours 21 minutes on average per week in the previous 4 weeks, and 37 hours and 48 minutes per week in the 12 weeks previous to that, which falls short of the standard of working hours for chronic overwork set by the Ministry of Employment and Labor. Brain stroke and heart disease (Ministry of Employment and Labor Notice No. 2017-117, issued on Dec. 29, 2017).
However, the working hours of the victim are somewhat higher than the working hours of his fellow train drivers, and in addition, it seems that the victim spent a considerable amount of time in union activities while performing his duties as the vice-chairman of the union branch. In addition, the victim had many work-aggravating factors, such as irregular shift work and work with great mental stress due to additional responsibilities.
(2) Union activity hours: Although the time the victim had put into union activities as vice-chairman of the labor union was not included in the working hours recognized by the company, it must be taken into account in judging whether or not work-related overwork existed. The victim had participated in collective negotiations since November 2017, and had been in charge of negotiating the preparation of the shift work schedule for two years since mid-2016. Although the victim did not work on January 24 right before his death, he attended a labor union officers’ workshop for two days and one night during January 23 to 24, 2018 to discuss pending issues such as the wage peak system. In particular, preparation of the work shift schedule was repeated every month, but was very stressful work when arranging night work hours and non-working days for about 230 train drivers, which had to be performed in addition to work hours. In this way, it seems that the victim was putting a considerable amount of time into union activities in addition to his own working hours. In fact, January 24, 2018, when the victim died, was a day off, but he handled work-related duties such as attending a workshop for union officers and reviewing the work shift schedule, and even after acknowledging the train delay accident, he called and sought to persuade the company’s operations manager that the fellow train driver involved in the accident was not responsible.
(3) Work aggravating factors: According to the work shift schedule of the victim, there were factors that increased the burden of work prescribed by the MOEL Guides, such as irregular arrival and departure, and leaving work the following day after working at night once or twice a week. In addition, the victim had to drive the KTX from the departure point to the destination by himself, there was no substitute driver on the train in case of emergency, and the victim had to meet the arrival time of the train even during long operations. In particular, since the review of the work shift schedule was directly related to driver’s labor intensity and wages, it was difficult to reconcile the interests of the train drivers within its deadline, which had caused considerable stress for the victim.
(4) Stress just before death: In addition to the above-mentioned heavy work, the victim received a message from another Union Executive/Employee, who was assisting with confirming and adjusting the work shift schedule on the day of death, that he wanted to stop helping with review of the work shift schedule. In the work shift schedule for February, there were many considerations due to opening of the Pyeongchang Winter Olympics, the opening of Incheon Airport Terminal 2, the upcoming Lunar New Year holidays, and the dispatch of train drivers due to opening of the Gyeonggang Train Line. Considering the circumstances in which the victim tried to protect the position of fellow worker to the company’s operations manager in relation to the train delay accident, it can be seen that the victim was under stress due to work and related union activities.
(5) Cause of death: Overwork or stress due to work and related union activities of the victim induced increasing heart beat and blood pressure, and might have caused a heart attack in persons with heart disease as the victim suffered from.

C. Court's Interpretation of the EWC’s Rejection

1. Criteria for the EWC judging death from overwork
The EWC judged whether the victim overworked based only on the standard for overwork fatalities listed in the MOEL guidelines. However, the court recognized the victim's union activities as work performance on behalf of the Company and recognized it as overwork. As vice-chairman of the Seoul High Speed Rail union branch and the union safety officer, the victim was engaged in a lot of overtime activities outside of his regular work. In particular, he participated in a two-day, one-night union workshop just before his death. As the labor union’s safety manager, he acted on behalf of his fellow train driver regarding the train delay accident. Such union activities for workers were not recognized as work performance by the EWC.

2. The omission of and failure to reflect the facts by the EWC
The court requested a factual inquiry into the workplace and labor union to correct the factual errors of the Welfare Agency, and supplemented the previous investigation, which had been insufficient. Fact Confirmation Reports from the Seoul High Speed Railway Office and the Seoul High Speed Railway Labor Union branch.
The 16 hours the victim had spent in collective bargaining during the 11th week prior to his death had been omitted from his working hours. In addition, the EWC said that the victim worked 6-day shifts and took a break for 2-3 days from the next day when working at night, but in reality the victim could take only 2 days off because he had left work in the late morning after working night shift and driving a train in the morning.
The EWC said that no sudden circumstances leading to death were confirmed, but in reality, despite the fact that that day of the accident was an off-day and the victim had checked the shift schedule to meet a deadline 4 hours before his death, then tried to persuade a fellow worker to continue helping him with reviewing the shift work schedule. In particular, one hour before his death, the victim had received reports of a delay of KTX trains the day before, understood the situation, and worked to explain to the company’s operations manager that the delay had not been the fault of a fellow train driver. The EWC failed to include these sudden events.

3. The EWC’s failures to reflect work aggravating factors
The EWC excluded the work aggravating factors on the grounds that the KTX train drivers carry out their work according to a shift work schedule normally prepared one month in advance. In response, the court judged that the work of the victim had aggravating factors. The working hours on the work shift schedule were irregular with different starting and leaving times every day, and night shifts were performed once or twice a week. In addition, it was very stressful because the victim operated the KTX alone, had to match the train time even during long operations, and was held accountable for delays.

D. Criteria for Determining Whether Union Activities are Work Provided to the Employer

Injuries and illnesses caused by union activities are not specified in the Industrial Accident Compensation Insurance Act. However, where union activities of full-time or part-time union officials are recognized, according to criteria, as work, they are limited to activities outlined in the collective agreement or activities approved by the employer. In addition, the court considers injury or illness from labor union activities as work-related in accordance with wider application of the current criteria for work-related injuries. Lim, Jongryul, Labor Law, 18th Ed., 2020, p. 497.

The court has recognized as work-related accidents involving full-time and part-time union officers that occurred while such officers were engaged in union activity that met the following criteria. First, it involves full-time or part-time union officers using the paid time-off system. The fact that a full-time labor union officer has been engaged in labor union activities without having to do the work originally outlined in the labor contract is due to a collective agreement or company consent. Labor union activities allow a full-time union officer to engage in company labor management tasks, which can be seen as work provided to the company, instead of his original work. Thus, an illness or accident occurring to a full-time union officer in the course of performing related labor union activities constitutes a work-related injury or illness. Supreme Court ruling on Feb. 22, 1994: 92nu14502; Supreme Court ruling on Dec. 8, 1998: 98du14006; Supreme Court ruling on Mar. 29, 2007: 2005du11418; Supreme Court ruling on May 29, 2014: 2014du35232.

Second, accidents that occur outside of working hours need to be work-related union activities. In the need to form smooth and stable labor-management relations, the full-time union officer system allows union officers to take charge of labor union affairs instead of the work originally outlined in the labor contract, while still holding the status of employees. In order for an accident involving a full-time union worker to be regarded as a work-related accident under the IACI Act, the labor union activities performed by the full-time union officer must be directly and specifically related to company labor management. Supreme Court ruling on July 14, 2015: 2005du5246.

Third, the labor union's work needs to be closely related to the company's labor management work, which means that employers allowed union officers to take charge of the work on behalf of their original work. Supreme Court ruling on May 29, 2014: 2014du35232.

However, the following union activities by full-time or part-time union officers are not regarded as work: first, activities unrelated to the work of the company concerned by an umbrella union Supreme Court ruling on July 14, 2005: 2005du5246.
; second, illegal labor union activities; and third, confrontational labor-management relations over a period of time from the existence of a labor dispute to conclusion of a collective agreement. Supreme Court ruling on Mar. 15, 2004: 2003du923.
Third, activities outside of working hours that are not specifically related to the employers' labor management work. Supreme Court ruling on Mar. 28, 1997: 96nu16170.


E. Opinion

In determining whether the death of the KTX driver was due to overwork, and therefore an occupational accident, the court’s ruling was based upon not only whether the incident occurred during working hours but also the special working conditions of the victim and the union activities he was involved in as a union officer. The average working hours of the victim were only 42 hours per week over the previous 4 weeks, but they were just more than the normal high-speed train drivers’ average of 36 hours per week over a similar 4 week period. There are also environmental factors such as the number of night or irregular shifts, and tension and noise in the driver’s cab arising from the high-speed train's single-driver situation and high-speed operations. In particular, the Employee had attended a regularly scheduled two-day union officers’ workshop the day before the date of the incident. At the same time, on the day of the incident, the victim had been involved in preparing the work shift schedule for union members at his home, and also protested on behalf of a union member to the company’s operations manager about delayed railway operations as the labor union's safety officer. In judging whether this case was related to overwork, the Seoul Administrative Court considered the union activities carried out by this union officer as well as the Guidelines on Working Hours for Determining Overwork issued by the Ministry of Employment and Labor.

For further questions, please
call (+82) 2-539-0098 or email bongsoo@k-labor.com

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