Section 2: Individual Labor Relations
Chapter 10: Employment Relation in (Sub)Contract and Dispatch Contract, etc
2. Worker Dispatch Relations
(4) Determination of Whether or Not Amounting to Worker Dispatch Based on the Substance of Employment Relation
| Supreme Court Decision on February 23, 2012, Case 2011du7076 | |||||
| * Plaintiff, Respondent: Choi ○○
* Defendant, Appellant: Chairman of the National Labor Relations Commission * Defendant Assistant Participant, Appellant: ○○ Corporation 1. Facts (Omitted) 2. Court Judgment a. The lower court premised that the determination of whether a relationship constitutes employee dispatch should not be confined by the formal contract type or name set by the parties, but instead by the substance of the employment relationship. It requires a comprehensive consideration of the contract's purpose or the specificity, specialty, and technicality of its subject matter, the real existence and business independence of the contracting parties as enterprises, and the extent of direction and command authority exercised by the user employer in contract performance. Following these premises, the court reviewed evidence regarding the content of the employment contract between the plaintiff and Mr. Lee ○○ (hereafter referred to as 'P Corp'), the subcontract agreement between P Corp and the participant, the management status of in-house subcontractors by the participant, and the establishment and implementation of various work standards by the participant. Moreover, it recognized the factual statements about the content and manner(method) through which P Corp's employees provided labor to the participant under the subcontract agreement, and the extent and scope of the participant's nomination or control. Based on these acknowledged facts, the court concluded that after being employed by P Corp, the plaintiff was dispatched to the participant's worksite and was in an employee dispatch relationship where he directly received work instructions from the participant. b. Furthermore, the manufacturing tasks like automobile assembly that the plaintiff was involved in, being direct production process tasks, do not fall under the permissible tasks for employee dispatch businesses under Article 5, Paragraph 1 of the former Act on the Protection, etc. of Dispatched Workers (before amendment by Law No. 8076 on December 21, 2006). Even though P Corp was not licensed for an employee dispatch business, this does not exclude the application of the direct employment consideration provisions set forth in Article 6, Paragraph 3 of the same law. Consequently, since the plaintiff continued to be dispatched to and used by the participant after two years from his hiring date of March 13, 2002, a direct employment relationship was established between him and the participant as of March 13, 2004. Despite this, the participant denied this employment relationship, blocked the plaintiff from entering the worksite, and clearly indicated an intention not to receive his services, thereby effectively dismissing him. The lower court's judgment is justifiable in accordance with the remand ruling of the Supreme Court, and there is no legal error in the distinctions between employee dispatch and subcontracting, misunderstanding of legal principles concerning dismissal, violation of evidence laws, insufficient consideration, contradictory reasoning, or inadequacy of reasons, as argued by the participant in their grounds for appeal. |
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| Download : 대법 2011두7076.pdf | |||||
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