Section 2: Individual Labor Relations
Chapter 8: Expiration of Employment Contract
5. Exceptions to Restriction on Employment Period in Fixed-Term Employment Contract
5.1 Case Where Jobs are Provided in Accordance with Welfare Policies and Unemployment Measures, etc
| Supreme Court Decision on August 18, 2016, Case 2014da211053 | |||||
| * Plaintiffs, Appellees: 1. Park OAe, 2. Lee OKyung, 3. Ha OKyung, 4. Kim OHee, 5. Han OHwa, 6. Kim OJin
* Defendant, Appellant: Busan Metropolitan City 1. Facts a. As part of the job creation and expansion plan in the field of educational services, the Ministry of Education, Science and Technology instructed all provincial and metropolitan city education offices in June 2009 to implement the 'Afterschool Program Parent Coordinator Project' with 100% national budget support until 2010, with the continuity of the project from 2011 to be decided based on the financial resources of each education office. b. Accordingly, including the defendant, various provincial and metropolitan city education offices implemented this project, but some, including Seoul and Gyeonggi Province, discontinued the project from 2012, whereas others, including the defendant, continued it using their own budgets. c. The principals of public schools under the defendant employed the plaintiffs on contracts of several months to a maximum of one year, depending on the plaintiffs or the school's circumstances, and each time a contract was renewed, a new contract was drawn up specifying the period of several months to a maximum of one year. d. Each employment contract specified that natural retirement occurs upon expiration of the contract term, and while the reasons for termination during the contract term were specified, there was no agreement regarding the obligation to renew the contract or reasons for refusing extension. Additionally, the plaintiffs received severance pay and submitted their resignations each time their contract period expired. 2. Court Judgment a. Articles 4(1) and 4(2) of the "Act on the Protection, etc. of Fixed Term and Part Time Workers" (hereinafter referred to as the 'Fixed Term Employment Act') stipulate that if an employer employs a fixed term worker for more than two years, it is principally considered that the worker has an indefinite term employment contract. This provision also applies to institutions of the national and local governments (Fixed Term Employment Act Article 3(3)). However, Clause 5 of the proviso to Article 4(1) of the Fixed Term Employment Act allows employers to employ fixed term workers beyond two years in Case s designated by Presidential Decree, where jobs are provided in accordance with the government's welfare policies and unemployment measures. Accordingly, Clause 1 of Article 2(2) of the Enforcement Decree of the Fixed Term Employment Act, delegated by Clause 5 of the proviso to Article 4(1), lists as an exception to the limitation on the employment period of fixed term workers, Case s of providing jobs for the development of people's vocational capabilities, employment promotion, and socially necessary services according to other laws such as the Basic Employment Policy Act and Employment Insurance Act. Since public services provided by national or local governments inherently have the character of socially necessary services, whether the provision of jobs for these public services falls under Clause 5 of Article 5(1) of the Fixed Term Employment Act and Clause 1 of Article 2(2) of the Enforcement Decree must be determined by comprehensively considering the implementation background, objectives, and characteristics of the project, as well as the temporariness or sustainability of the project. b. ① The After School Program Parent Coordinator Project was initiated as part of the job creation and expansion in the education services sector and as a measure to combat unemployment in response to the deepening economic crisis, with one of its objectives being 'contributing to overcoming the economic crisis through the creation of jobs for parents'. ② Initially, when the Ministry of Education, Science, and Technology implemented this project, special grants were provided temporarily for two years, after which the continuation of the project was to be determined by each provincial and metropolitan city education office, indicating the project's temporary and provisional nature intended for job creation. ③ The role and duties of the After School Program Parent Coordinators are supportive and collaborative, and not of a nature that necessarily requires continuous or essential execution. ④ The project was implemented with 100% national budget support, and consequently, the defendant was subject to the oversight and supervision of the Ministry of Education, Science, and Technology, including submitting data for afterschool job monitoring and details of special grant expenditures. ⑤ Since the project relied on national subsidy support and special grants ceased in 2012, many provincial and metropolitan city education offices ended the project, demonstrating its inherent limitation of not being sustainable without state subsidy support unless special circumstances exist. ⑥ Additionally, the eligibility for After School Program Parent Coordinators included 'highly educated fulltime homemakers who are parents', which potentially falls under Article 6(1)(5) of the Basic Employment Policy Act regarding 'promoting labor market participation among the non-economically active population'. Considering these points, it is reasonable to view the defendant's employment of the plaintiffs as fixed term workers as fitting within the exception outlined under Clause 5 of Article 4(1) of the Fixed Term Employment Act and Clause 1 of Article 2(2) of the Enforcement Decree of the Fixed Term Employment Act, 'providing jobs for socially necessary services according to welfare policies and unemployment measures'. Thus, there exists an exception to the limitation on the employment duration of fixed term workers in employing the plaintiffs as such. |
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