Answer:
- If an Employee enters into the definite-term LC and the judgment forces the Employer to reinstate the Employee but the LC term has expired, does the Employer have to reinstate the Employee ? If the Employer must reinstate the Employee, is the working duration from the time of unilateral termination to the expiration date of the LC?
Pursuant to Article 42.1 of the Labour Code, upon the unilateral termination of a LC being illegal, the Employer must reinstatethe Employee under the concluded LC, which includes the agreement on the LC term. This means the Employer only has to reinstatethe Employee according to the term of the concluded LC.
By reference to some effective judgments on the relevant issue, the court has ruled that the LC will expire on the expiration date of the LC. Accordingly, if the LC has expired at the date of the judgment, the Employer will not be obliged to reinstate the Employee, but other payment obligations to the Employee still must be performed as prescribed by law. If the LC has not expired at the time of the judgment, the Employer is obliged to reinstate the Employee until the expiration date of the LC.
2. Regarding the obligation to pay salary, SI and HI premiums (“Payable Amounts”) for the days which the Employee did not work, the concept of “the days which the Employee did not work” will be calculated from the date of unilateral termination to the expiration date, or from the date of unilateral termination to the judgment date, or the date of returning for work or the date of agreement on the LC termination?
The Labour Code does not expressly regulate how to calculate the number of days which the Employee did not work. However, this regulation is by nature to ensure the consecutiveness of the LC and protect the Employee’ legitimate right and interest (the right to work and to be paid) during the contract term for the case where the LC is unilaterally and illegally terminated. Therefore, for any Employee who works under a definite-term LC, the days which the said Employee did not work should be understood as the days when he or she did not work under the concluded definite-term LC.
The legal proceeding practice also shows us that the competent courts may only request the Employer to pay the said Payable Amounts to the Employee with respect to the period in which the Employee did not work under the concluded LC or under any other agreement of the parties (if any). Practically, the number of days which the Employee did not work will be calculated from the date of unilateral termination of the LC until the date which the Employee should have worked under the concluded LC, specifically as follows:
- If the LC has expired at the time of the judgment, the number of days which the Employee did not work will be until the expiration date of the LC; and
- If the LC has not expired at the time of the judgment, the number of days which the Employee did not work will be calculated from the date of unilateral termination of the LC to the date which the Employer reinstates the Employee.
- If the Employee does not agree to return to work or the Employer does not want to reinstate theEmployee, the number of days which the Employee did not work will be until the date of the judgment or otherwise agreed by the parties.
