JIPYONG LLC

[Case No. Gwangju High Court decision 2019nu12509 dated May 8, 2020]

Unless Article 70(1) of the Employment Insurance Act specifically requires that childcare leave must be granted for 30 continuous days, the childcare leave pay should not be denied on the ground that the 30 days of childcare leave were not continuous.

The plaintiff was an employee working in Gwangju branch of the employer. The plaintiff used the childcare leave once by splitting from February 18, 2019 to March 17, 2019 for 28 days and then from April 9, 2019 to April 10, 2019 for two days. The plaintiff then applied for the childcare leave pay to the defendant, local labor authorities, on April 26, 2019. The defendant denied the application on the ground that the plaintiff was not granted 30 or more days of childcare leave.

The Gwangju High Court considered that when the regulations on the childcare leave pay were newly drafted on August 14, 2001, the childcare leave could not be split. However, the amendment to the Equal Employment Opportunity and Work-Family Balance Assistance Act on December 21, 2007 allowed the childcare leave to be split. The court viewed that the requirement for 30 days of childcare leave as a condition for application for the childcare leave pay was intended to promote the childcare leave of 30 days or more rather than to limit the rights to the childcare leave pay. Further, the plaintiff had only 300,000 KRW as the actual wage in the month the plaintiff used the childcare leave which was a significant reduction of income. Therefore, the court held that providing the childcare leave pay would be consistent with the purpose of the childcare leave pay system.

The court held that the employee who was granted 30 days of childcare leave in total, even if not 30 continuous days, should be entitled to apply for the childcare leave pay, unless Article 70(1) specifically requires that the childcare leave be used for 30 continuous days by considering the totality of circumstances, such as the legislative purpose of the childcare leave pay system, the legislative history, the relations to the other laws, and the nature of the childcare leave pay.