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In cases where the Labor Relations Commission issues an unfair dismissal remedy order or the court issues a judgment confirming the invalidity of the dismissal, the employer is typically ordered to reinstate the employee to their original position along with payment of the 'amount equivalent to wages during the dismissal period.' The legal nature of this amount equivalent to wages during the dismissal period becomes an issue. In our legal system, wages are consideration for labor, so it is understood that no wages accrue during the unfair dismissal period when labor is not provided. Therefore, courts and the Ministry of Employment and Labor interpret the amount equivalent to wages during the dismissal period not as wages but as damages for unfair dismissal. The Ministry of Employment and Labor's administrative interpretation states: 'Wages under the Labor Standards Act refer to all monetary payments made by the employer to the worker as wages, salary, or any other name for labor provided. Thus, the amount equivalent to wages paid by the employer for the unfair dismissal period is not paid for labor provided but constitutes damages under the Civil Act due to the employer's fault preventing the worker from providing labor, and therefore is not wages under the Labor Standards Act' (Unemployment 68430-183, July 11, 1997). Accordingly, even if an unfair dismissal remedy order is received from the Labor Relations Commission, if the employer does not pay the amount equivalent to wages during the dismissal period, a separate civil lawsuit must be filed, and since it does not qualify as unpaid wages under the Labor Standards Act, the employer cannot be prosecuted for wage arrears (Wages 32240-4296, March 28, 1991). The amount included in the equivalent to wages during the dismissal period is interpreted to mean the full amount of wages that would have been received if the employee had worked during the unfair dismissal period. Therefore, case law holds that if annual wage increases are determined and implemented through collective bargaining each year as stipulated in the collective bargaining agreement,
the employee's wages during the unfair dismissal period must be calculated based on the increased wages as per the collective bargaining agreement concluded after the dismissal (Supreme Court 93Da21736, September 24, 1993). On the other hand, case law states that if the employee engages in work at another company during the dismissal period and obtains profits, such profits correspond to the benefits obtained by exemption from debt under Article 538, Paragraph 2 of the Civil Act, so 'the employer may deduct the amount of such profits from the wage amount when paying wages during the dismissal period.' Meanwhile, it is ruled that 'Article 45 of the Labor Standards Act provides that in cases of suspension due to the employer's fault, with the purpose of guaranteeing the minimum livelihood of the worker, the employer must pay the worker at least 70% of their average wage during the suspension period, and here, suspension includes cases where individual workers are willing to provide labor under their labor contract but employment is refused or becomes impossible contrary to their will. In the above deduction, among the wage amount the worker can receive, it cannot be subject to profit deduction within the limit of suspension allowance under Article 45 of the Labor Standards Act, and intermediate income must be deducted from the amount exceeding that suspension allowance,' thereby ruling that even if intermediate income is deducted from the amount equivalent to wages during the dismissal period, at least 70% of the average wage corresponding to the suspension allowance must be paid (Incheon District Court 2003Gahap4750, February 4, 2004).