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Supreme Court Decision on Request for Remedy from Unfair Dismissal

On February 20, 2020, a significant Supreme Court Decision on request for remedy from unfair dismissal was made (2019Du52386, hereafter referred to as the “Decision”). So far, in case where an employee who filed for remedy from unfair dismissal claiming monetary compensation and the employment agreement terminates during the proceedings of the examination or reexamination or administrative suit, the claim was rejected as it was regarded that there was no interest in suit. Therefore, even if he or she was unfairly dismissed, an employee could not win the case after the termination of the employment agreement.

However, Supreme Court changed its ground of the precedents and clarified that in case there is need for the employee who filed for remedy from unfair dismissal to claim monetary compensation equivalent to his or her wages during the period of dismissal, the interest in suit shall be also accepted even after the termination of the employment agreement or age of retirement. The Decision gave better chances of remedy to the employees unfairly dismissed. For further inquiries, please contact me at https://lawyerhwang.com/consultation/ or [email protected]. As for termination of employment agreement, please refer to the post “Various ways to terminate the employment agreement” (https://lawyerhwang.com/various-ways-to-terminate-the-employment-agreement/).

The following is the summary of the Decision provided by Supreme Court (https://www.scourt.go.kr/portal/news/NewsViewAction.work;jsessionid=Z8wxQfgKXFu4YD9p2tL2Kb18jAe5USNasZ5zYd81R7T62rfp4yDPqeM9jqRVxRlH.BJEUWS04_servlet_SCWWW?pageIndex=1&searchWord=&searchOption=&gubun=4&type=5&seqnum=7002).  

2019두52386  부당해고구제재심판정취소   (사)   파기자판

[부당해고구제재심판정의 취소소송 중 정년이 된 경우 소의 이익이 문제된 사건]

◇근로자가 부당해고구제재심판정의 취소를 구하는 소를 제기한 후 정년이 된 경우 소의 이익이 인정되는지 여부(적극)◇

  1. 부당해고 구제명령제도에 관한 근로기준법의 규정 내용과 목적 및 취지, 임금 상당액 구제명령의 의의 및 그 법적 효과 등을 종합적으로 고려하면, 근로자가 부당해고 구제신청을 하여 해고의 효력을 다투던 중 정년에 이르거나 근로계약기간이 만료하는 등의 사유로 원직에 복직하는 것이 불가능하게 된 경우에도 해고기간 중의 임금 상당액을 지급받을 필요가 있다면 임금 상당액 지급의 구제명령을 받을 이익이 유지되므로 구제신청을 기각한 중앙노동위원회의 재심판정을 다툴 소의 이익이 있다고 보아야 한다.

  2. 위와 같은 법리는 근로자가 근로기준법 제30조 제3항에 따라 금품지급명령을 신청한 경우에도 마찬가지로 적용된다.

  3. 이와 달리 근로자가 부당해고 구제신청을 기각한 재심판정에 대해 소를 제기하여 해고의 효력을 다투던 중 다른 사유로 근로관계가 종료한 경우 소의 이익이 소멸된다는 취지로 판단한 종전 판결(대법원 1995. 12. 5. 선고 95누12347 판결, 대법원 2001. 4. 10. 선고 2001두533 판결, 대법원 2011. 5. 13. 선고 2011두1993 판결, 대법원 2012. 7. 26. 선고 2012두3484 판결, 대법원 2015. 1. 29. 선고 2012두4746 판결 등)은 이 판결과 배치되는 범위 내에서 이를 변경한다. ☞  원고가 부당해고구제 재심판정 취소소송을 제기한 후 제1심 소송 계속 중 정년에 도달한 사안에서, 해고기간 중의 임금 상당액을 지급받도록 하는 것도 부당해고 구제명령제도의 목적에 포함되는 점, 근로자가 미지급 임금에 관해 강제력 있는 구제명령을 얻을 이익이 있는 점, 민사소송과 별개로 신속ㆍ간이한 구제절차 및 이에 따른 행정소송을 통해 부당해고로 입은 임금 상당액의 손실을 회복할 수 있도록 하는 것이 부당해고 구제명령제도의 취지에 부합하는 점 등을 들어 원고에게 재심판정의 취소를 구할 소의 이익이 인정된다고 판단하여 기존 판례를 변경하고(전원일치 의견), 이와 달리 소의 이익이 없다고 보아 이 사건 소를 각하한 제1심판결을 정당하다고 판단한 원심을 파기하여 제1심판결을 취소하고 사건을 제1심법원에 환송한 사례         

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