Supreme Court Issues First Ruling Explicitly Recognizing Employer's Duty to Accommodate Work-Family Balance

"Unfair Dismissal of Working Mom Refusing Early Morning and Holiday Work"

The Supreme Court has ruled that it is unfair for a business operator who promised to continue employing workers to force a working mother raising young children to work early morning or on public holidays during the probation period, and to refuse her regular employment for refusing such work.

This is the first ruling to explicitly recognize the employer's "duty of consideration to support work-family balance" for affiliated workers and to present the standards for it.

Supreme Court, Seocho-dong, Seoul.

According to the legal community on the 10th, the Supreme Court's Second Division (Presiding Justice Min Yu-sook) overturned the appellate court's ruling that had ruled in favor of the plaintiff and accepted the Central Labor Relations Commission's decision to remedy the unfair dismissal of Ms. B, and remanded the case to the Seoul High Court in a lawsuit filed by road management service company A against the Central Labor Relations Commission seeking cancellation of the retrial decision.

The court stated, "The appellate court's judgment contains an error in misunderstanding the legal principles regarding the duty of consideration for work-family balance under the Act on Gender Equality in Employment and, by not conducting necessary investigations, affected the judgment," as the reason for the reversal and remand.

Company A, which has employed about 6,400 workers regularly and has been engaged in comprehensive building management services, won a bid for maintenance services for a certain section of the highway in a competitive bidding conducted by Company C and signed a subcontracting contract with Company C in April 2017.

When bidding, Company A submitted a commitment letter to fulfill working conditions stating that "except for special cases such as voluntary resignation of workers, reaching retirement age, fare collection fraud, or other socially accepted cases where employment is difficult, the contracted personnel will be retained and employment maintained" to ensure employment stability of workers.

Ms. B, who had joined the previous company responsible for maintenance services on the highway section in June 2008 and had worked there for 8 years and 9 months, signed a labor contract with Company A on April 1, 2017. The contract stipulated a day shift from 9 a.m. to 6 p.m., and included a clause that the employer could refuse regular employment during the three-month probation period if there were issues. Only weekly holidays and Labor Day were recognized as holidays, and matters not specified in the contract were governed by on-site work regulations.

Before the company change, Ms. B worked as an administrative supervisor at the highway sales office, and as a working mother raising two children aged 1 and 6, she worked in a day shift from 9 a.m. to 6 p.m.

Due to the nature of the company's work, such as highway toll collection, which must continue 24 hours, other employees worked early shifts from 6 a.m. to 3 p.m. about 3 to 5 times a month or worked on public holidays in rotation. However, Ms. B was exempted from early shifts and holiday work as a courtesy due to raising two children. The early shifts Ms. B was supposed to work were covered by the sales management team leader, and she could take annual leave on public holidays.

However, the newly contracted service company A instructed Ms. B to work early shifts and public holidays like other employees.

In April 2017, the first month of the labor contract, Ms. B was allowed to go out according to her children's daycare and kindergarten drop-off times and completed all three early shifts.

There were no public holidays in April 2017, but at the end of the month, the company instructed her to come to work on public holidays as she belonged to the sales management team.

However, from May 2017, Ms. B did not work on public holidays and submitted a statement to the company explaining that the previous service provider did not require public holiday work, other administrative supervisors at sales offices did not work on public holidays, and it was unfair to suddenly change a long-standing work pattern.

The company told Ms. B that if unauthorized absences continued, permission to go out during early shifts would not be granted, and thereafter Ms. B did not work early shifts either.

Eventually, the company notified Ms. B on June 30, 2017, of refusal of regular employment due to refusal to work early shifts and unauthorized absences on public holidays.

The Central Labor Relations Commission ruled that the company's refusal to hire Ms. B was an unfair dismissal, and the company filed a lawsuit seeking cancellation of this decision.

The Seoul Administrative Court, which handled the first trial, found no problem with the commission's ruling.

The court acknowledged that Ms. B had an obligation to comply with the company's instructions for early shifts and public holiday work but failed to do so. It also assumed that such refusal could be a justifiable reason for refusal of regular employment.

However, the court examined whether social norms could recognize the rationality and reasonableness of refusing regular employment when a worker fails to fulfill agreed labor obligations due to raising young children.

The court stated, "Although the parental right to child-rearing is not explicitly stated in the Constitution, it is an important fundamental right derived from Article 36, Paragraph 1, which guarantees marriage and family life, Article 10, which guarantees the pursuit of happiness, and Article 37, Paragraph 1, which stipulates that citizens' freedoms and rights shall not be disparaged for reasons not enumerated in the Constitution."

It continued, "The constitutional parental right to child-rearing should be regarded as part of the objective value order of our society, and as social awareness has spread that child-rearing should be considered even in the private sector, the recognition of 'consideration and support for child-rearing' in labor relations has become widespread."

The court noted, "The legislature concretized the changing social awareness by partially amending the previous 'Act on Gender Equality in Employment' to the current 'Act on Gender Equality in Employment and Support for Work-Family Balance' on December 21, 2007, aiming to promote maternity protection and female employment, realize gender equality in employment, and support workers' work-family balance to improve the quality of life for all citizens, and established related provisions."

Article 19-5 (Other Measures for Childcare Support) Paragraph 1 of the Act on Gender Equality in Employment states, "Employers shall endeavor to take one of the following measures to support workers raising children under the age of 8 or in the second grade of elementary school," listing measures such as adjusting start and end times of work, restricting overtime, shortening or flexibly operating working hours, and other necessary measures to support childcare.

In light of these points, the court said, "The refusal of regular employment in this case should not infringe upon the consensus achieved in our society in response to social and economic changes or the values that the legislature intends to realize through the enactment of the law. This serves as the court's standard in judging whether the refusal of regular employment in this case is socially reasonable."

Furthermore, the court stated, "Although the company's instruction for early shifts and public holiday work may appear lawful under employment rules and work regulations, and the probation evaluation results forming the basis for refusal of regular employment may seem based on objective facts, considering various circumstances comprehensively, the company did not make efforts or show consideration for work-family balance during the probation and evaluation process, applied related regulations formally, and effectively forced the participant to choose between 'working as an employee' and 'raising young children.' As a result, the participant was penalized by losing half of the attendance score in the probation evaluation for not performing early shifts and public holiday work."

It concluded, "Therefore, the refusal of regular employment in this case lacks social reasonableness and is ineffective."

On the other hand, the Seoul High Court, which handled the second trial, ruled in favor of Company A. The appellate court canceled the first trial judgment and also canceled the Central Labor Relations Commission's retrial decision that favored Ms. B.

The court cited a Supreme Court precedent stating, "Dismissal of a worker during the probation period or refusal to conclude a regular contract upon expiration of the probation period is an exercise of the employer's reserved right to terminate the contract. Considering the purpose of the probation system to observe and judge the worker's job ability, qualifications, personality, and sincerity, it is recognized more broadly than ordinary dismissal. However, even in this case, there must be objectively reasonable grounds and social reasonableness."

This ruling implies that while reasonableness must be recognized, the employer's discretion in refusing regular employment during the probation period should be broadly allowed compared to ordinary dismissal.

The court found that the company's refusal of regular employment to Ms. B had objectively reasonable grounds and was socially reasonable.

The court cited reasons including Ms. B's repeated failure to comply with instructions for early shifts and public holiday work despite warnings, failure to follow company procedures such as submitting absence notices, refusal of public holiday work citing previous company practices without explaining childcare difficulties or requesting measures such as leave, and the possibility that other family members could care for children on public holidays, making it unreasonable to expect the company to identify and resolve such circumstances without explanation.

The court concluded, "The company's refusal of regular employment to the participant is justified, and the retrial decision that judged it as unfair dismissal is illegal. The company's claim is valid and should be upheld."

However, the Supreme Court reversed the result again.

The Supreme Court also recognized that "It is difficult to view that a participant who is a worker during childcare can refuse early shifts or public holiday work recognized in the labor contract or employment rules solely because of childcare," acknowledging Ms. B's obligation to work early shifts and public holidays as instructed by the company.

Like the first trial court, the Supreme Court emphasized that "the parental right to child-rearing" is an important fundamental right under the Constitution. Referring to the amendment of the Act on Gender Equality in Employment, it concluded that the company's refusal of regular employment lacked social reasonableness.

The court stated, "The Act on Gender Equality in Employment concretizes the social fundamental right aspect of childcare rights by law and stipulates the duty of the state and employers to support work-family balance for workers' childcare. In particular, Article 19-5 of the Act requires employers to endeavor to take measures such as adjusting start and end times, restricting overtime, shortening or flexibly operating working hours, and other necessary measures to support workers raising children under 8 years old or in the second grade of elementary school (childcare workers)."

It added, "Therefore, it is not reasonable to expect childcare workers to bear all the difficulties arising from childcare burdens alone, and employers should bear the duty of consideration to support work-family balance for their childcare workers."

The court further stated, "The specific content of the duty of consideration borne by employers should be judged concretely in each case by comprehensively considering the worker's environment, workplace size, personnel operation conditions, business needs, and other circumstances."

Regarding Ms. B's case, the court said, "There is a significant possibility that the company failed to fulfill its duty of consideration for work-family balance for childcare workers and refused regular employment, making it difficult to recognize reasonable grounds and social reasonableness for the refusal. The appellate court should have examined and judged whether the company fulfilled its duty of consideration for work-family balance for the participant during the probation and evaluation process under a somewhat strict standard."

Unlike the appellate court, the Supreme Court found that even if Ms. B did not specifically inform the company of her difficulties, the company could have known about them.

The court stated, "The company was fully aware that Ms. B, as a childcare worker, would face difficulties in childcare when working early shifts or on public holidays requiring taking children to childcare facilities."

It added, "Considering the conditions and personnel status of the sales office, it is not excessive to expect the company to make efforts to support work-family balance for Ms. B regarding public holiday work. Suddenly changing a long-standing work pattern and requiring attendance on public holidays when childcare facilities are closed significantly hinders child-rearing, and it is hard to see a strong business necessity for the company to require Ms. B, an administrative supervisor, to work on public holidays."

This ruling was issued six years and six months after Ms. B received the refusal of regular employment notice. The Supreme Court hearing alone took four years after the second trial verdict.

A Supreme Court official said, "This ruling is significant as it explicitly recognizes for the first time the employer's duty of consideration to support work-family balance for affiliated workers and presents standards to judge the specific content of the duty of consideration borne by employers."

This content was produced with the assistance of AI translation services.