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Subject   April 2018 - The Right of Fixed-term Workers to Expect Renewal of their Employment Contract
The Right of Fixed-term Workers to Expect Renewal of their Employment Contract

I. Introduction
The problem of non-regular workers in Korea occurred due to the overuse of irregular workers through managerial dismissal and worker dispatch laws, in efforts to cope with the IMF financial crisis in 1997. In order to limit the use of non-regular workers and encourage their use as full-time workers whenever possible, the Act on the Protection, etc. of Fixed-term and Part-time Workers (hereinafter referred to as the "Fixed-term Workers Act") was enacted. For the protection of irregular workers, the Fixed-term Workers Act, enacted in 2007, stipulates that fixed-term workers can be used for a maximum of two years, and after two years, the fixed-term worker is regarded as a non-fixed term worker (Article 4 of the Act). This regulation was introduced to limit the use of fixed-term workers and to eliminate employment insecurity by promoting the renewal of their fixed-term employment in cases where fixed-term workers had worked for more than two years.
Article 4 of the Fixed-term Workers Act stipulates that fixed-term workers can be used for two years, with some exceptions. Nevertheless, the right to expect renewal is assured in cases where the fixed-term contract can be renewed, with a renewal condition; the worker expects to have his/her fixed-term contract renewed. In addition, the exemption clauses of fixed-term employment are exceptional for repeated employment contracts for professional workers and elderly workers, which add to the confusion in the worksite, making it necessary to establish the contents and specific criteria for this. In this regard, I would like to specifically examine the laws, precedents, and reasons for the right to expect renewal.

II. Restriction on the Term of the Fixed-term Workers Act (Article 4) and the Right to Expect Renewal

1. Contents of Article 4 of the Fixed-term Workers Act
Article 4 of the Fixed-term Workers Act limits the period of use for fixed-term workers to two years. The reason this limitation is as follows: (1) In Article 16 of the previous version of the Labor Standards Act, the upper limit is set as one year, but there is no restriction on the total period of use through repeated renewal of the labor contract. This enabled employers to take advantage of repeating an employment contract for less than one year as a means of avoiding the restriction against dismissal according to Article 23 of the LSA. This has increased the number of workers in fixed-term contracts; and (2) it is a principle that employment is terminated automatically upon termination of the contract. However, if an employment contract is renewed several times, it may be interpreted as being an employment contract without a fixed term. In that case, as the habitual practice of the contract, the intention of the parties, the expectation of renewal, the nature of the work, and other various factors need to be considered, it has been pointed out that the workers are not likely to win a dismissal case, and that such dismissal cases are inconsistent, which led to the enactment of the Fixed-term Workers Act. Since the adoption of the Fixed-term Workers Act, even if an employment contract is repeated a number of times, there is no such dispute because the term can only be a limit of two years. However, in instances of a fixed-term labor contract where there are conditions for renewal even if there is no provision for renewal, if there is a trust in the relationship for the renewal of the fixed-term contract, the right to expect renewal is still valid even after introduction of the Act.

2. The right to expect contract renewal
The right to expect renewal is not specified in the Fixed-term Workers Act, but has been consistently recognized in court rulings, and has the same role as the subsidiary clause of Article 4 of the Fixed-term Workers Act. The right to expect renewal means that if a contract is signed for fixed-term employment, but a contract renewal is reasonably expected, if the employer refuses to renew the contract with no rational justification, there is no effect as unfair dismissal. In this case, any employment after the contract expires shall be regarded as a renewal of the old labor contract.
The Supreme Court concluded, "In the case of a term of employment contract, the employment contract between the parties shall be terminated without waiting for a separate action such as dismissal of the employee when the period expires. However, (1) except in a case where the original period is renewed over a long period of time and the fixed period is only a form; (2) in cases where there is a provision stipulated in the employment contract and the rules of employment that the fixed-term contract will be renewed if certain requirements are met despite the expiration of the period; or (3) if there is a trust relationship between the parties that the employment contract will be renewed if certain requirements are met, even if there is no such specific provision; the refusal to renew the employment contract can be considered dismissal rather than termination of the contract due to expiration of contract period.” Since the enactment of the Fixed-term Workers Act, the total contract period is limited to two years in principle, and the above issue (1) was solved to some degree. However, since issues (2) and (3) arise from the expectation of conditional renewal and the right to expect renewal, disputes have often arisen between workers and employers.

III. Rational Justification for Refusing Renewal after Recognition of the Right to Expect Renewal

1. Reasons to Refuse Renewal
The court ruling provides the criteria: "If a reasonable expectation that an employment contract will be renewed is granted to a worker, it is ineffective for the employer to unfairly refuse to renew the employment contract without reason. If there is reasonable justification to not renew the contract, even if the employee has a reasonable expectation of the renewal, such reasons can be evaluated by considering the following: (1) The employer’s purpose and the characteristics of the business, workplace conditions, the employee’s position and job responsibilities; (2) The process of signing an employment contract; ③ Whether or not the requirements and procedures for renewal of the employment contract are set up and its operational status; and ④ Whether the employee bears responsibility or not. The reason for refusal and the procedure should be judged based on socially-accepted standards, on the basis of being objective, reasonable and fair, and the burden of proof for such matters shall be borne by the employer."
Even if legitimate expectation of renewal of a fixed-term worker’s employment contract is recognized, it is sufficient for the employer to refuse to renew the contract if there is a rational justification which is deemed to be equivalent to the socially-accepted standard, which is a relaxed standard rather than a legitimate reason. This is because it would suggest rational justification for replacing the renewal expectation, or suggest that the expectation of renewal has changed.

2. Related labor cases
(1) Cases where there is no reason to refuse to renew the contract
(i) Worker A made an employment contract for two years from Oct 26, 2010 to Oct 25, 2012. According to the employment contract, the contract could be renewed one month before the expiry date. One month before the expiration of the contract, the company informed worker A that the labor relationship would be terminated on October 25, the expiry date of the employment contract. The company informed worker A that the personnel evaluation results were “not good”, which was the reason for termination of the contract. However, at that time, the company's personnel evaluation criteria were vague, and objectivi

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