Section 2: Individual Labor Relations
Chapter 11: Discrimination Correction for Non-Regular Employees
1. Requirements for Request for Discrimiantion Correction
1.3 Recognition of Need for Correction of Seeking Discrimination Correction Even After the Expiry of the Employment Contract
| Supreme Court Judgment on December 1, 2016, Case 2014du43288 | |||||
| * Plaintiff, Appellant: A
* Defendant, Appellee: Chairman of the National Labor Relations Commission * Auxiliary Participant: Auxiliary Participant 1 and 3 others 1. Facts a. The plaintiff employs about 33 regular employees and operates ○○ Automobile Driving School. The participants signed fixed term employment contracts with the plaintiff and worked as driving instructors at this driving school. b. The participants claimed that they were subjected to discriminatory treatment regarding bonuses and other benefits compared to the regular driving instructors at this driving school without any reasonable justification. They filed an application for rectification with the Incheon Regional Labor Relations Commission on October 2, 2012. The Incheon Regional Labor Relations Commission, on December 14, 2012, recognized that the plaintiff's failure to pay or underpayment of bonuses and vehicle maintenance costs compared to comparable employees constituted discriminatory treatment and issued a decision for monetary compensation. The plaintiff, dissatisfied with the decision, filed for review with the National Labor Relations Commission, but the National Labor Relations Commission dismissed the request on March 4, 2013. 2. Court Judgment The primary purpose of the discriminatory rectification procedure is to address the disadvantages incurred by fixed term employees due to the employer's discriminatory treatment, and improve the condition to what it would have been if there had been no discriminatory treatment, aiming to rectify unreasonable discrimination against fixed term employees and strengthen the protection of their working conditions. It is not intended to restore the fixed term employee status or guarantee the employment contract period itself. Therefore, the expiration of the employment contract period is not directly related to the rectification of discriminatory treatment. Monetary compensation or indemnification orders issued by the Labor Relations Commission as part of the rectification order following an application for its rectification are meant to financially redress the disadvantages that remain as a result of past discriminatory treatment, and by nature, these can be issued even if the employment contract period has expired. Additionally, the expiration of the employment contract period of fixed term employees who have received discriminatory treatment does not preclude the Minister of Employment and Labor from issuing a rectification request to the employer by authority or the Labor Relations Commission from proceeding with the rectification process following the notification from the Minister of Employment and Labor under Article 152 of the Fixed term Employment Act. Furthermore, Article 13(2) of the Fixed term Employment Act grants the Labor Relations Commission the authority to order compensation up to three times the amount of damages incurred by fixed term employees in Cases of clear and deliberate or repeated discriminatory treatment by the employer. Article 153 stipulates that when the rectification order is finalized, for the purpose of expanding its effect, the Minister of Employment and Labor ex officio can investigate discriminatory treatment against other fixed term employees, request rectification from the employer, and notify the Labor Relations Commission to proceed with the rectification procedure. The indemnification order within the rectification order should be recognized for its independence as a sanction and holds significant importance. And also it is necessary to initiate and maintain rectification procedures as a premise for the expanded effect of the rectification order. Considering the content of the regulations related to the rectification procedure, their legislative purpose, the function of the rectification procedure, and the content of the rectification order, it is concluded that the corrective interest in seeking rectification of discriminatory treatment does not disappear merely because the fixed term employment contract expired at the time of the application for rectification or during the rectification procedure. |
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