Open Decision Ledger · Labour & industrial accidents
Trainee period counted with the main contract for severance pay
Supreme Court, Feb. 17, 2022, 2021Da218083 (judgment)
Case name: 임금[퇴직금 산정과 관련하여 계속근로기간의 기산점이 언제인지가 문제된 사건]
Official text on the National Law Information Center
Question
Where A passed the trainee recruitment examination at the medical foundation, worked one month in the administration office and was then, after review by the personnel committee, hired as a temporary worker with no gap, must that trainee period be counted together with the main contract period as the continuous service period for severance pay under Article 8(1) of the Act on the Guarantee of Employees' Retirement Benefits?
Holding
It must. The Court defined probation as a period of trial employment before the main contract, taken to observe, judge and assess the worker's suitability for the job, and held that where the main contract follows the probation without a gap, the two periods are counted together, just as where the form of labour provision changes during service. On these facts the month in the administration office appears to have been probation in which labour was actually provided rather than a mere practical test, and since A kept working as an employee of the medical foundation, that month too belongs to the continuous service period.
Summary of the holding, verbatim
시용기간 만료 후 본 근로계약을 체결하여 공백 기간 없이 계속 근무한 경우에도 시용기간과 본 근로계약기간을 통산한 기간을 퇴직금 산정의 기초가 되는 계속근로기간으로 보아야 한다.
Unofficial English translation
Even where an employee concludes a main employment contract after the expiration of the probationary period and continues to work without any intervening gap, the period combining the probationary period and the period of the main employment contract must be regarded as the period of continuous employment that serves as the basis for calculation of severance pay.
Disposition
Reversed and remanded Stated in the decision
원심판결을 파기하고, 사건을 제주지방법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Jeju District Court.
Form of the test
Elements stated Stated in the decision
시용이란 본 근로계약 체결 이전에 해당 근로자의 직업적 능력, 자질, 인품, 성실성 등 업무적격성을 관찰·판단하고 평가하기 위해 일정기간 시험적으로 고용하는 것을 말한다.
Unofficial English translation
Probation refers to the temporary employment of a worker for a certain period of time, prior to the conclusion of the main employment contract, in order to observe, determine, and assess the worker's occupational competence, qualifications, character, sincerity, and other aptitude for the work.
Factors
- 시용기간 만료 후 본 근로계약을 체결하여 공백 기간 없이 계속 근무한 경우에도
- 갑이 을 의료원의 수습사원 채용시험에 합격하여 1개월간 원무과에서 수습사원으로 근무하면서 사무보조 등 업무를 수행한 후
- 을 의료원으로부터 급여 명목으로 돈을 지급받았고
- 수습기간 만료 이후 을 의료원의 인사위원회 심의를 거쳐 임시직 근로자로 채용된 사안에서
- 단순히 실무전형에 불과한 것이 아니라 현실적으로 근로를 제공한 시용기간에 해당하였던 것으로 보이므로
Unofficial English translation
• Even where an employee concludes a main employment contract after the expiration of the probationary period and continues to work without any intervening gap,
• A passed the recruitment examination for a probationary employee of B Medical Center, worked for one month as a probationary employee in the general affairs department performing clerical support and other work, and thereafter
• received money from B Medical Center in the name of wages, and
• after the expiration of the probationary period was hired as a temporary employee upon deliberation by the personnel committee of B Medical Center, in a case where
• it does not appear to have been merely a practical test but rather a probationary period during which work was actually performed,
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 1995. 7. 11. 선고 93다26168 전원합의체 판결(공1995하, 2577)
Unofficial English translation
Supreme Court en banc judgment 93Da26168 decided July 11, 1995 (Gong 1995 Ha, 2577)
Decisions referred to
[1] 대법원 1995. 7. 11. 선고 93다26168 전원합의체 판결(공1995하, 2577)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
What length of gap between the end of a trainee period and the start of a main contract is enough to break the counting of the two periods together?
The remand judgment of the Jeju District Court on the plaintiff's entry date and the resulting amount of severance pay will show how the counting rule is applied in practice. A later Supreme Court decision on the required continuity between probation and the main contract, or an amendment to Article 8(1) of the Act on the Guarantee of Employees' Retirement Benefits, would call for this entry to be read again.
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Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Jeju District Court, in its judgment of 2 February 2021 (2020Na12622), treated the plaintiff's month as a trainee not as a settled employment but as a step in the temporary hiring procedure, a kind of practical test. It noted that the money paid was calculated differently from the defendant's remuneration rules and paid on a different day, and that the working form and conditions of trainees differed from those of ordinary workers, so continuity of the employment relationship between the two periods was hard to accept. It therefore held that the plaintiff's entry date was 1 January 2000, the date of the temporary hiring.
Supreme Court standard: The Supreme Court held that this view could not be accepted. The trainee period appears to have been probation in which A actually provided labour rather than a mere practical test, and since A kept working as an employee of the medical foundation after it expired, that period too must be included in the continuous service period for severance pay; refusing the claim was a misreading of the law on the continuous service period at the time severance pay is calculated, and it affected the outcome. The Court therefore omitted any decision on the remaining grounds of appeal, reversed the whole judgment and remanded the case to the Jeju District Court, on the unanimous opinion of the participating Justices.
Distinguishing conditions
- A trainee period that is only a practical test, with no labour actually provided.
- A gap between the expiry of the trainee period and the start of the main contract, so that the work was not continuous.
- A worker who does not keep working as an employee after the probation ends, since the Court conditioned the counting on continued service.
Record verification notes
Set the trainee period against the three points the court below relied on: how the money was calculated and when it was paid, and how the working form and conditions differed from those of ordinary workers, since the Supreme Court did not say those facts are irrelevant. Then confirm there was no gap between the end of the month as a trainee and the temporary hiring dated 1 January 2000, because the counting rule requires uninterrupted continued work. Note also that the Court did not decide the remaining grounds of appeal, so any other argument about the start date stays open on remand.
From the official text
Points at issue
[1] 시용기간 만료 후 본 근로계약을 체결하여 공백 기간 없이 계속 근무한 경우, 시용기간과 본 근로계약기간을 통산한 기간을 퇴직금 산정의 기초가 되는 계속근로기간으로 보아야 하는지 여부(적극) [2] 갑이 을 의료원의 수습사원 채용시험에 합격하여 1개월간 원무과에서 수습사원으로 근무하면서 사무보조 등 업무를 수행한 후 을 의료원으로부터 급여 명목으로 돈을 지급받았고, 수습기간 만료 이후 을 의료원의 인사위원회 심의를 거쳐 임시직 근로자로 채용된 사안에서, 갑의 수습사원 근무기간도 퇴직금 산정의 기초가 되는 계속근로기간에 포함된다고 봄이 타당하다고 한 사례
Unofficial English translation
[1] Where an employee concludes a main employment contract after the expiration of the probationary period and continues to work without any intervening gap, whether the period combining the probationary period and the period of the main employment contract should be regarded as the period of continuous employment that serves as the basis for calculation of severance pay (affirmative) [2] A case in which A passed the recruitment examination for a probationary employee of B Medical Center, worked for one month as a probationary employee in the general affairs department performing clerical support and other work, and thereafter received money from B Medical Center in the name of wages, and after the expiration of the probationary period was hired as a temporary employee upon deliberation by the personnel committee of B Medical Center, where it was held to be reasonable to regard A's period of service as a probationary employee as included in the period of continuous employment that serves as the basis for calculation of severance pay
Summary of the holding
[1] 시용이란 본 근로계약 체결 이전에 해당 근로자의 직업적 능력, 자질, 인품, 성실성 등 업무적격성을 관찰·판단하고 평가하기 위해 일정기간 시험적으로 고용하는 것을 말한다. 근속기간 중에 직종 등 근로제공의 형태가 변경된 경우와 마찬가지로, 시용기간 만료 후 본 근로계약을 체결하여 공백 기간 없이 계속 근무한 경우에도 시용기간과 본 근로계약기간을 통산한 기간을 퇴직금 산정의 기초가 되는 계속근로기간으로 보아야 한다. [2] 갑이 을 의료원의 수습사원 채용시험에 합격하여 1개월간 원무과에서 수습사원으로 근무하면서 사무보조 등 업무를 수행한 후 을 의료원으로부터 급여 명목으로 돈을 지급받았고, 수습기간 만료 이후 을 의료원의 인사위원회 심의를 거쳐 임시직 근로자로 채용된 사안에서, 갑이 을 의료원의 수습사원으로 근무한 기간은 단순히 실무전형에 불과한 것이 아니라 현실적으로 근로를 제공한 시용기간에 해당하였던 것으로 보이므로, 갑이 수습기간 만료 후에도 계속 을 의료원의 근로자로서 근무한 이상 갑의 수습사원 근무기간도 퇴직금 산정의 기초가 되는 계속근로기간에 포함된다고 봄이 타당한데도, 이와 달리 본 원심판단에 법리오해의 잘못이 있다고 한 사례.
Order
원심판결을 파기하고, 사건을 제주지방법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Jeju District Court.
Provisions referred to
[1] 근로자퇴직급여 보장법 제8조 제1항 [2] 근로자퇴직급여 보장법 제8조 제1항
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