Forgot to Apply for Parental Leave Pay, Can I Still Receive It Later?

Supreme Court: "If You Do Not Apply Within the Deadline, You Cannot Receive Benefits"

[Asia Economy Reporter Baek Kyunghwan] Childcare leave pay remembered after more than a year. Can it still be received if applied for late?

Mr. A, who gave birth to a child in October 2014, took childcare leave from December of that year to December of the following year, along with a three-month maternity leave prior to that. However, Mr. A only remembered the childcare leave pay and maternity leave pay belatedly and applied for them between February and March 2017.

After a long lawsuit, the Supreme Court recently ruled that Mr. A cannot receive the pay. This means that if childcare leave and maternity leave pay are not applied for within the legally prescribed period, the pay cannot be received regardless of the statute of limitations on the right to payment.

On the 18th, the Supreme Court en banc (Presiding Justice Min Yusook) overturned the lower court’s ruling that had favored Mr. A in the appeal lawsuit against the Seoul Regional Employment and Labor Office Gangnam Branch regarding the non-payment of childcare leave pay, and remanded the case to the Seoul High Court.

Initially, the Seoul Regional Employment and Labor Office Gangnam Branch did not pay the benefits, stating that Mr. A did not apply for the pay within the designated period. According to Article 70, Paragraph 2 of the Employment Insurance Act at the time, childcare leave and maternity leave pay must be applied for within 12 months from the end of the leave. Specifically, Article 70, Paragraph 2 of the Employment Insurance Act stipulates that pay must be applied for within 12 months from the day childcare leave ends.

The first and second trials had differing judgments. The first trial dismissed Mr. A’s claim, stating that "childcare leave pay guarantees the right to apply for pay within a reasonable period of 12 months from the end date, and by limiting the application period, it aims to secure the financial stability of the employment insurance fund."

The second trial interpreted the limitation on the application period for childcare leave pay as merely a procedural rule to remind that "if not applied for, the procedure will not proceed."

The Supreme Court’s judgment was different again. By an 8 (reversal and remand) to 5 (dismissal of appeal) vote, the Court ruled that the application deadline provision is a "mandatory rule to promptly finalize legal relations concerning childcare leave pay," ruling against Mr. A. Since the provision clearly states that the application must be made within a certain period, alternative interpretations are necessarily limited.

However, five justices viewed the application period limitation as a non-binding advisory provision. Like the second trial, they said the provision limiting the application period serves to urge the procedure. Additionally, there was an opinion that public officials receive childcare leave pay without a separate application, which causes discrimination.