The Supreme Court (Image courtesy of Yonhap)
SEOUL, Dec. 12 (Korea Bizwire) – A road maintenance company has been sanctioned by the Supreme Court for compelling parents of young children to work early morning and holiday shifts and subsequently refusing to retain them when they resisted compliance. The ruling declares that the company failed to fulfill its duty of consideration under the Equal Employment Opportunity and Work-family Balance Assistance Act.
As per a legal report released on Tuesday, the second division of the Supreme Court overturned the initial ruling that favored the road management service company in its legal battle against the National Labor Relations Commission to annul an unfair dismissal decision. The case has been remanded to the Seoul High Court.
The affected woman, referred to only as Ms. A, who had been employed at the highway sales office since 2008, had been raising her two young children while working from 9 a.m. to 6 p.m. In acknowledgment of her circumstances, the company initially exempted her from the first shift (6 a.m. to 3 p.m.), which employees usually worked three to five times a month. Additionally, the company allowed all employees, including Ms. A, to utilize their annual leave to take time off on public holidays.
However, in April 2017, the situation changed when a new service provider entered the scene, requiring existing employees to sign new contracts with a three-month probationary period. The company asked Ms. A to work the first shift and also on public holidays. While Ms. A objected to the abrupt change in her established work routine, the company refused to allow her to return to her prior schedule. At that time, her children were 1 and 6 years old.
Ms. A protested by refusing to work early shifts and holidays for two months. Eventually, she was informed that she would be dismissed, with the company citing poor attendance. In July of the same year, she filed an unfair dismissal claim with the Labor Commission, and the Central Labor Commission ruled in her favor, declaring her dismissal as “unfair.”
The company appealed the decision, leading to a legal battle, with the first court ruling in favor of Ms. A and the second court ruling in favor of the company.
The Supreme Court emphasized that while Ms. A could not refuse to work the first shifts or public holidays simply because she had to take care of her children, the company could not unilaterally alter the terms of the employment contract and employment rules regarding the first shift and holidays. It concluded that there was ample reason to believe that the company refused to retain her due to its failure to consider the work-family balance for employees with children, and noted that it was challenging to recognize the rationality of the dismissal and its alignment with social customs.
The court noted, “The company was fully aware of the challenges Ms. A would face in raising her children if compelled to work early hours or on holidays.” It stated that the abrupt alteration of a long-standing working pattern and the requirement to work on holidays, especially when childcare facilities were closed, would significantly impede her ability to care for her children. The court found it hard to perceive that the company’s business needs justified such changes.
Article 19.5 of the Equal Employment Opportunity Act mandates that “Employers shall endeavor to take necessary measures, such as adjusting working hours, to support childcare for an employee with children aged eight years or younger or in the second grade or lower of elementary school.”
“This case is significant as it establishes and clarifies the recognition of an employer’s duty of care based on the ‘shall endeavor’ clause,” stated a Supreme Court official. “It also marks the first instance of providing standards for determining the specific extent of the duty of care owed by an employer.”
M. H. Lee (mhlee@koreabizwire.com)
