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schwa
Joined: 18 Jan 2003
Location: Yap
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 Posted: Fri Jan 04, 2013 4:04 pm Post subject: |
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| ttompatz wrote: |
Had he taken his severance at the end of the 1st year then he loses - the clock on the calendar year restarts from the date of the withdrawal. |
Thats how I figured it, & the OP confirms he got paid out after his first year.
The boss was under no obligation to point out the severance ramifications of unpaid leave. It may not have even occurred to him at the time. The OP was also remiss in not asking about it. |
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YTMND
Joined: 16 Jan 2012
Location: You're the man now dog!!
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| Posted: Fri Jan 04, 2013 4:48 pm Post subject: |
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| schwa wrote: |
| ttompatz wrote: |
Had he taken his severance at the end of the 1st year then he loses - the clock on the calendar year restarts from the date of the withdrawal. |
Thats how I figured it, & the OP confirms he got paid out after his first year.
The boss was under no obligation to point out the severance ramifications of unpaid leave. It may not have even occurred to him at the time. The OP was also remiss in not asking about it. |
If it restarts "from the date of the withdrawal", then the 6 weeks off is a non-issue because there is no mention the school knew about these 6 weeks when the first severance payout was made (the original poster mentioned it in the original post, but nothing on paper so far I see that would indicate this). So, if the teacher completes a 2nd year with or without the 6 weeks, then they should get a second severance payout.
The question is if the school did anything different than normal when they found out about the 6 weeks. If they stopped pension payments or had the teacher sign something in regards to severance, then this might disqualify the teacher. However, time off alone is not a basis for denying benefits. Something has to clearly state the ramifications. If not in the contract, then by a matter of law.
Let's simplify this. Look at sick days. If you are sick 4 days, each day represents a different sick episode, and you only have 3 notes from your doctor, does that mean you only worked 364 days and should be denied benefits like severance?
My understanding is that you would lose your pay for that day, possibly pay a penalty, but still be employed. In this case, the employer ok'd the 6 weeks and chose not to fire the teacher. Whether it is 1 sick day or 6 weeks shouldn't be a legal/labor board issue.
| Quote: |
| The boss was under no obligation to point out the severance ramifications of unpaid leave. |
Where does it state there are ramifications of unpaid leave outside of the contract?
The original poster is not seeking pay for the 6 weeks. They are seeking severance. If the benefits of severance are to be denied, then I think the employer does have the obligation to notify the employee because it is them that is changing the terms of the agreement. The teacher wanted to change the terms also by getting 6 weeks off, and it was their obligation to notify the employer, which they did and got permission.
Unfortunately, the stance labor board could take is that it is a contractual matter whether or not the employee finished 1 year. Therefore, they might not do anything until there is a judgment in favor of the employee.
Last edited by YTMND on Fri Jan 04, 2013 5:30 pm; edited 3 times in total |
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YTMND
Joined: 16 Jan 2012
Location: You're the man now dog!!
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| Posted: Fri Jan 04, 2013 5:21 pm Post subject: |
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Another point I would like to make is that if the contract states you must complete 12 months before getting a return flight and you get a return flight, then...... 
I am curious what labor board would say if you showed them a flight itinerary for a trip home and bank information showing you didn't pay for it. Get emails indicating the school paid for the flight. Another option is bit of a gamble, but try to get them to reimburse you before you leave. That way you have your bank statements showing the school paid the same amount as the flight. |
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mandrews1985
Joined: 12 Sep 2011
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| Posted: Sat Jan 05, 2013 12:32 am Post subject: |
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My second year contract started 16th of March 2012 and my 6 weeks unpaid leave was agreed upon in January 2012 (2 months before my contract ended/new one began)
My unpaid vacation started at the end of May 2012, and lasted till the 5th of July 2012.
So I had worked over 2 months of my second contract before the unpaid leave, it wasnt between the contracts. I hope that makes a difference.
1.Terms of contract:
1.1This contract will be valid for a period of 12 months beginning 16th of Match 2012 and ending 15th of MArch 2013.
3.Airfare:
3.1 When the renewal contract is finished before the expecting the date, The round trip ticket will not be provided. (MY contract is finishing on the correct date, so I am getting my flight)
6.Severance:
6.1 The employer will pay severance to the employee upon completion of contract. The amount of severance pay will be the same of a month salary (2.2 million won) and if necessary, applicable government deductions will be suctracted.
- Nothing else is said about it.
In the contract there is no talk about unpaid vacation at all.
@ontheway:
1.I received severance for my first year, yes.
2. My renewal contract said nothing about unpaid leave. It was a stand one year deal that spans 16th of March 2012 till the 15th of March 2013. The contract contains no language indicating that my year would begin when I returned, and there is no language indicating that my time away would not count towards a year of work. The contract does not talk about the unpaid leave at all.
There is no adjustment into my contract catering for my unpaid leave.
I think i over come the argument that i was in the contract less than 1 year due to the fact contract started 16/3/2012 and my vacation was 28/5/2012 - 5/7/2012. (hopefully)
@YTMND:
My question was why is flight and severance considered different. But I think you have answered that already. My contract states '3.1 When the renewal contract is finished before the expecting the date, The round trip ticket will not be provided. (MY contract is finishing on the correct date, so I am getting my flight)'
How do I find out this pension information?
Also, note my severance was paid in May 2012 (rather than March) he told me I could take it in March or in May, I asked for it in May because it would help me with my trip. I know for sure it does not contain extra severance based on the 2 months I worked for before the unpaid vacation.
So if the severance is based on a month by month basis after the fist one, I am owed 1/12th of 2 months at the least?
@Ttompatz
I took my year one severance at the end of May when I went on my unpaid vacation.
@Schwa:
You're right, I should of asked about, but it just didnt occur to me, unfortunately. I now know differently for the future.
@YTMND: I signed nothing regarding this unpaid time. I will check the Pension payments, but unsure how to do this.
I believe the wording of my contract states that I only get my return flight if my contract ends. I believe getting my flight itinery and proving I didnt pay for it, would help my case too.
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A final note has been raised, a friend at another campus but same school (owned by the same guy) said a guy got married and took 2 months unpaid leave (mid contract- similar to me) and recieved a full severance at the end of the year without extending the contract to cover those 2 months. Is that setting a precedence? Could that work in my favor too
On Monday I will be speaking to my boss again and trying to get the flight booked as soon as possible and hopefully get some clarifty on the severance debate.
I really appreciate the time and thought you guys are putting into my case.
So as of now my plan is:
Check pension and health insurance to see if contributions were paid over my unpaid leave.
Get manager to book flight as soon as possible.
Anything else? |
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YTMND
Joined: 16 Jan 2012
Location: You're the man now dog!!
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| Posted: Sat Jan 05, 2013 1:42 am Post subject: |
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| Quote: |
| So I had worked over 2 months of my second contract before the unpaid leave, it wasnt between the contracts. I hope that makes a difference. |
The difference lies in what the employer does. Action speaks louder than words. Whether or not the Korean legal system will listen is another story.
So far, my bets are on getting your airfare (and proof the school paid for it) to establish you worked a year. Read on.
| Quote: |
| 3.1 When the renewal contract is finished before the expecting the date, The round trip ticket will not be provided. (MY contract is finishing on the correct date, so I am getting my flight) |
Hopefully. You need proof the school paid for it. A plane ticket alone could mean you left 3 months after a contract was signed. It doesn't help you unless you can show the school paid for it, establishing 12 months.
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| Also, note my severance was paid in May 2012 |
Get bank records to show this, you should be entitled to 2/12 because of this. See how this depends more on what the employer did or didn't do?
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| So if the severance is based on a month by month basis after the fist one, I am owed 1/12th of 2 months at the least? |
Yes, but I don't see why you did the formula that way. I got the same answer by doing 2/12 * 1 month salary.
Bank statement of when you received your first severance. If you have anything in writing that indicates it would be paid before May, it is not good for you, but the burden of proof is on them not you to provide. Keep quiet if you have such understandings. As far as you and the little birds know, you were going to NOT get any severance until the end of the 2nd year. Then, he paid into it in May and you didn't know about it until such time. |
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mandrews1985
Joined: 12 Sep 2011
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| Posted: Tue Feb 05, 2013 8:23 am Post subject: |
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Just thought I best conclude my experience.
So as I stated before, my manager is paying for my flight home. Well actually, he's paying for me to fly to Thailand for 2 weeks and, the return too. Due to the fact I told him I want to continue in Korea after I leave my current position.
After another meeting about severance pay, he informed me, again, that I am not entitled to my severance, but that the director has decided to 'reward' me with my a bonus equal to a pro rata'd severance.
Basically 365 days - 49 days = 316 days worth of severance.
I found that, plus the return flight, a more than fair compromise on both parts meanining I can leave on good terms. I've already had a glowing reference from him too, when a recruiter phoned him up recently.
In the end, a happy ending! |
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