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[Recent Court Case 1] If an employer hired a third party person without confirming whether a former worker dismissed for managerial reasons was willing to enter into the employment agreement, it could be deemed to constitute a violation of the obligation of preferential reemployment.

2021.01.14

[Case No.: Supreme Court Decision 2016Da13437 dated Nov. 26, 2020] 
 
The Supreme Court found that when an employer, who had dismissed a worker for managerial reason, hired a third party without confirming whether the dismissed worker is willing to enter into the employment agreement, the employer can be deemed to violate the obligation of preferential reemployment.  
 
The defendant is a juridical foundation which operates residential facilities for the disabled. The plaintiff had served as a living rehabilitation teacher at the facilities since February 1, 2004. The plaintiff and another employee A were laid off for managerial reason on June 1, 2010. The defendant has hired living rehabilitation teachers nine times during a period from 2010 when the plaintiff and the employee A were laid off and until 2013. One of them was the teacher who was in charge of the living department, together with the plaintiff.  
 
Article 25(1) of the Labor Standards Act provides that when an employer who has dismissed a worker under the provisions of Article 24 intends to hire, within three years of the date of the dismissal, any worker who will perform the same duty as the dismissed worker did at the time of such dismissal, he/she shall preferentially rehire the worker dismissed under Article 24, if the worker so desires. The controversial issue in this case was whether the alleged violation of the defendant’s obligation to preferentially rehire the plaintiff can be recognized.  
 
The Supreme Court found, “when an employer who has dismissed a worker under the provisions of Article 24 intends to hire, within three years of the date of the dismissal, any worker who will perform the same duty as the dismissed worker did at the time of such dismissal, he/she shall preferentially rehire the worker dismissed, unless the worker expresses opposite intention or there is any objective reason why it is hard to expect that the worker will enter into the employment agreement or there are any other special reasons.” It also found, “the defendant can be deemed to have the obligation to preferentially rehire the plaintiff on and around November 1, 2011 when the defendant hired two workers who would perform the same duty of living rehabilitation teacher as the plaintiff did at the time of dismissal after the defendant dismissed the plaintiff and another employee A, at the latest.”  
 
In addition, the Supreme Court held, “if the employer fails to perform the obligation of preferential reemployment under Article 25(1) of the Labor Standards Act, the dismissed worker is entitled to judicial rights to seek a court decision, which will substitute the expression of his/her intention to be hired against the employer, and when the court decision is finally issued, the employment relationship between the employer and the dismissed worker is established.” In conclusion, it ruled that the dismissed worker is entitled to claim the damages equivalent to the wages accrued from the time when the obligation of preferential reemployment arose until the employment relationship is established, for the employer’s failure to perform the obligation of preferential reemployment in violation of the said provision.

Newsletter_Labor & Employment [Recent Court Case 2] In case a worker has been dismissed without a justifiable cause before the date of business transfer, the business transferee shall succeed to the employment relation with the dismissed worker 2021.01.14

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