Confirmation of Employee Status | A Supreme Court Judgment That the Right Is Forfeited When It Is Not Exercised for a Long Period

This was a case in which, during a lawsuit for confirmation of employee status, the issue arose of whether the right is forfeited when the worker does not exercise it for a long period.

The plaintiff, who was employed by an in-house subcontractor of the defendant and handled engine manufacturing process work, claimed that the effect of deemed direct employment had arisen under the former Act on the Protection, etc. of Dispatched Workers (as it stood before being amended by Act No. 8076 on December 21, 2006, hereinafter the “former Dispatched Workers Act”), and accordingly sought confirmation of employee status and payment of unpaid wages against the defendant.

In the lawsuit for confirmation of employee status, the Supreme Court's judgment differed from that of the lower court.

The Supreme Court found that the plaintiff did not file the suit in this case until January 24, 2021, which was about 18 years after April 22, 2002, when direct employment was deemed to have occurred, and about 11 years and 4 months after September 26, 2009, when the dispatched employment relationship ended; and that there were no other circumstances indicating that, in the meantime, the plaintiff had maintained a dispatched employment relationship through another subcontractor of the defendant or had exercised any right, such as demanding that the defendant perform direct employment, before filing the suit in this case.

Lawsuits against the defendant company concerning worker dispatch have been filed steadily, beginning with the 2010 Ulsan plant case. In particular, after the Supreme Court recognized a dispatch relationship in the 2015 Asan plant case, large-scale litigation followed. Nevertheless, the plaintiff filed the suit several years after this legal determination had become established.

The Supreme Court found that the plaintiff filed the suit in this case when about 11 years and 4 months had passed since the employment relationship with the defendant had been completely severed, and about 10 years and 6 months had passed even from the date on which the Supreme Court rendered the judgment recognizing the worker dispatch relationship of subcontractor employees at the defendant's Ulsan plant; and that, if the principle of forfeiture were denied even in such a case, this would also be inconsistent with the balance against the claim for a declaration of intent to directly employ, to which the ten-year extinctive prescription period applies.

The Supreme Court found that the lower court had nonetheless held that this was insufficient to recognize that the plaintiff's right had been forfeited, and stated that this holding erred by misunderstanding the legal doctrine on the application of the principle of forfeiture, and accordingly reversed and remanded the lower judgment.

This was a case in which, during a lawsuit for confirmation of employee status, whether the principle of forfeiture applied was at issue.

The doctrine of loss or forfeiture of a right is the doctrine that, where a right holder does not exercise the right for a long time so that the other party comes to believe that the right will no longer be asserted, the exercise of the right is not permitted because it is contrary to the principle of good faith.

To apply the principle of forfeiture, the length of the forfeiture period and the circumstances of both the right holder's side and the other party's side must all be considered and assessed reasonably according to common social notions.

In a lawsuit for confirmation of employee status, various items of evidence must be collected and submitted. Because various legal provisions are intricately intertwined in this process, it is advisable to receive the assistance of an attorney experienced in such matters and to obtain an optimal solution tailored to the individual case.

The 🔗industrial accident practice group of Daeryun Law Firm LLP analyzes precedents in similar cases to find the legal doctrines applicable to a case and establishes a litigation strategy tailored to the client.