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The Supreme Court ruled that a person receiving education and training prior to signing a formal labor contract is also a legal ‘worker’ if he or she provides work while subordinated to the employer.
The 3rd division of the Supreme Court (Chief Justice Kim Jae-hyung) announced on the 6th that it had confirmed the lower court ruling that the plaintiff lost the appeal in the appeal for revocation of the disposition for approval of the decision on nursing care benefits paid by a bus company once morest the Korea Labor Welfare Service.
The court said, “Even if the contents of work provided during the trial period differ from those of regular workers, the trial labor contract must be deemed to be established as long as work is provided for the employer in a subordinate relationship.” It is the same even if it has the personality of a .
He continued, “There is room for an employer in an economically superior position to determine the working conditions, such as wages during the trial period, at their own will. It cannot be seen that it is in the process of signing the contract,” he emphasized.
According to the court, the company’s apprentice driver, A, suffered a bus crash in a sharp curve while driving under the supervision of the supervisor as his last test in September 2015.
In February 2018, Mr. A claimed that he suffered a distal fracture of the second lumbar vertebrae in this accident and applied for medical care, and the Korea Workers’ Compensation and Welfare Service approved the treatment. Accordingly, the company filed a lawsuit arguing that the disposition of the Korea Labor Welfare Corporation was illegal.
The issue in the court was whether Mr. A might be regarded as an employee under the Labor Standards Act.
The bus company hires applicants who have completed the document screening as official employees through the process of ‘know the route → test drive → write employment/labor contract → trial period’. He claimed that he was not in a position.
On the other hand, the first and second trial judged that Mr. A was a legal worker.
It is said that the bus was operated with passengers on board during the driver’s familiarity with the city bus route for regarding a month before signing a formal employment contract at this company, and Mr. It was also taken into account that he had been instructed to get on the bus with the main driver (original fixed driver) and had lunch at a restaurant designated by the company.
The court ruled that “A’s route apprenticeship period should be considered as a trial period to learn the basics necessary to work as a driver under the direction and supervision of a bus company, and should be considered to be included in the working period.”
He also pointed out that in light of the status of economically superior employers and subordinate workers, Mr. A should not be regarded as not an employee just because he did not sign an employment contract or received wages.
The Supreme Court also said, “There are cases in which Mr. A only knows the route and does not drive himself, but this is education and training for the benefit of the bus company, or at least the position of trainee and worker. It is reasonable to assume that the trial labor contract has been established.”
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