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Severance Pay
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mandrews1985



Joined: 12 Sep 2011

PostPosted: Thu Jan 03, 2013 9:52 pm    Post subject: Severance Pay Reply with quote

I have a slight situation.

So in March 2013 my contract with my school ends. I've been here for 2 years.

Contract 1: March 2011 - March 2012.

Towards the end of my first contract they asked me to renew. I said yes, but only if i can have 6 weeks off during May 2012 to go home for a mates stag do and wedding. They said it would be unpaid, I said fine that's what I expected. So i sign a new contract.

Contract 2: March 2012 - March 2013.

I start my new contract, I go home for the 6 weeks, unpaid, I pay for my own flights all that. No problem. I return.

Having enjoyed my two years here I have decided to move on. So as what appears to be standard, 2 months before my contract ends, (yesterday) I set up a meeting with my boss. I let him know I'll be moving on in March 2013.

He told me I won't get my severance because I havent completed my contract, I showed him my contract which ends March 2013. He said because I didnt work for 6 weeks in the summer I have to add those 6 weeks to the end of my contract. I said that is not reasonable and was not outlined previously.

I then showed him my contract, which states a severance must be paid on the basis that I will have completed my contract, as my contract end date is March 2013 and I will be working till March 2013.

I have signed nothing regarding extending, nor was it mentioned before yesterday that i would not be entitled to a severance if i take the 6 weeks unpaid vacation.

Obviously I would not of renewed my contract if that was the case.

Advice? Help? Is he in the right?
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schwa



Joined: 18 Jan 2003
Location: sokcho

PostPosted: Fri Jan 04, 2013 12:27 am    Post subject: Reply with quote

I can see the boss's perspective: you'll have only worked 10 & a half months. You'll have finished the contract you signed, but you won't have completed it.
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Dodge7



Joined: 21 Oct 2011

PostPosted: Fri Jan 04, 2013 1:33 am    Post subject: Reply with quote

schwa wrote:
I can see the boss's perspective: you'll have only worked 10 & a half months. You'll have finished the contract you signed, but you won't have completed it.

Finish and complete are the same thing.
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ttompatz



Joined: 05 Sep 2005
Location: Kwangju, South Korea

PostPosted: Fri Jan 04, 2013 2:09 am    Post subject: Reply with quote

labor board fight and you win.
Talking with your boss and you lose.

Labor board fight will take a month or 3 after you finish work.
If you are staying in Korea it is worth the effort.

If you are leaving, in spite of the ability to file and use an agent/friend you probably won't see anything even if you do win.

.
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YTMND



Joined: 16 Jan 2012
Location: You're the man now dog!!

PostPosted: Fri Jan 04, 2013 2:24 am    Post subject: Reply with quote

Dodge7 wrote:
schwa wrote:
I can see the boss's perspective: you'll have only worked 10 & a half months. You'll have finished the contract you signed, but you won't have completed it.

Finish and complete are the same thing.


"You're finished!!"

Ok.

"You're completed!!"

Ahh.... Rolling Eyes Not so sure about.
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schwa



Joined: 18 Jan 2003
Location: sokcho

PostPosted: Fri Jan 04, 2013 4:23 am    Post subject: Reply with quote

ttompatz wrote:
labor board fight and you win.

Are you sure about that? OP signed a contract to work a calendar year. Then during that year he takes 6 weeks leave unpaid, ie not under contract. He hasnt fulfilled his year.

My provincial public school program views one day of unpaid leave as legally voiding severance. "Sorry, didnt do your 365." Consequently, no one here requests unpaid leave.


Last edited by schwa on Fri Jan 04, 2013 4:25 am; edited 1 time in total
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Wildbore



Joined: 17 Jun 2009

PostPosted: Fri Jan 04, 2013 4:25 am    Post subject: Reply with quote

If it was a vacation you were still employed there and entitled to the severence. As far as I'm aware, a vacation day or holiday doesn't mean your not employed there anymore. It shouldn't void a severence having time off, especially approved time.

Did you also check with the NPS or NHIC office if they paid your health insurance or pension contribution for that vacation month and a half. If they did pay it, that's more proof you were still employed there.

Just collect proof and bring it to the labor board.
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schwa



Joined: 18 Jan 2003
Location: sokcho

PostPosted: Fri Jan 04, 2013 4:42 am    Post subject: Reply with quote

Vacation is one thing, you're still under contract. Unpaid leave is a different animal.

If I'm wrong in this, please correct me, & I'll just stand down. But thats my understanding.
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YTMND



Joined: 16 Jan 2012
Location: You're the man now dog!!

PostPosted: Fri Jan 04, 2013 5:43 am    Post subject: Reply with quote

So, you (will) have worked 87.5% of a year. Let's say you were in your first year, you could take the stance that it isn't his decision. Severance is decided on by labor board, not like flights. So, you should ask them and not worry about what the school says.

However, you say you (will) have worked 2 years. Were you paid any severance for your first year? If not, then you get severance every month after the 12 month mark, 1/12 of your salary. This would make your position stronger. Still, it has nothing to do with what the a school says. Talk to labor board.

Either you get severance for 1 year or both, but not neither.

He should be able to see that he owes severance for the first year and until May 2012 of the second year. That would be 14/24 of twice (or 14/12) your salary at least. If he doesn't recognize this, then it's no point in talking to him about the other 8/12 of the second year.
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ontheway



Joined: 24 Aug 2005
Location: Somewhere under the rainbow...

PostPosted: Fri Jan 04, 2013 8:05 am    Post subject: Re: Severance Pay Reply with quote

mandrews1985 wrote:
I have a slight situation.

So in March 2013 my contract with my school ends. I've been here for 2 years.

Contract 1: March 2011 - March 2012.

Towards the end of my first contract they asked me to renew. I said yes, but only if i can have 6 weeks off during May 2012 to go home for a mates stag do and wedding. They said it would be unpaid, I said fine that's what I expected. So i sign a new contract.

Contract 2: March 2012 - March 2013.

I start my new contract, I go home for the 6 weeks, unpaid, I pay for my own flights all that. No problem. I return.

Having enjoyed my two years here I have decided to move on. So as what appears to be standard, 2 months before my contract ends, (yesterday) I set up a meeting with my boss. I let him know I'll be moving on in March 2013.

He told me I won't get my severance because I havent completed my contract, I showed him my contract which ends March 2013. He said because I didnt work for 6 weeks in the summer I have to add those 6 weeks to the end of my contract. I said that is not reasonable and was not outlined previously.

I then showed him my contract, which states a severance must be paid on the basis that I will have completed my contract, as my contract end date is March 2013 and I will be working till March 2013.

I have signed nothing regarding extending, nor was it mentioned before yesterday that i would not be entitled to a severance if i take the 6 weeks unpaid vacation.

Obviously I would not of renewed my contract if that was the case.

Advice? Help? Is he in the right?



There are two important additional facts that will affect your situation:
1) Did you receive your severance for the first year already, perhaps at the end of the first contract?
2) What does your renewal contract say about severance and your unpaid leave? Was it a standard one year deal, or did it contain any language indicating that your actual year would begin when you returned from your time away or that your time away would not count toward a year of work?
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mandrews1985



Joined: 12 Sep 2011

PostPosted: Fri Jan 04, 2013 8:14 am    Post subject: Reply with quote

@Schwa. I can also see my bosses perspective too, but I feel that a pre agreed unpaid vacation shouldn't void my severance.

@ttompatz. I'm very happy that you have suggested I should win. I will be staying in Korea for a new job thus I am happy to go down the Labor Board route. How exactly would I do that? How do I contact the labor board? Will it cost me money?

@wildbore. I also see it this way, it was an agreed vacation. I didn't go AWOL and there was no talk of adding it to the end of my contract. The time was approved by him. How do I go about checking NPS and NHIC office? Could you send me a link?

@YTMND. I was paid my first severance yes. I am getting my exit flight from them (i'll be flying out for a vacation, then coming back 3 weeks later so i'll be here to deal with the labor board), why is it different to the severance?

Also, I saw in the another thread called 'Forced Severance Pay' about pro rata severance. Would I atleast be entitled to that, if not the whole thing.

I really appreciate the help and I hope some more help comes my way too.

It's a sour end to my time at the academy because I have really enjoyed most of the time here and manager in question has been genuinely good to me.
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ontheway



Joined: 24 Aug 2005
Location: Somewhere under the rainbow...

PostPosted: Fri Jan 04, 2013 12:57 pm    Post subject: Reply with quote

You say that you were paid severance for your first year. From what you've written, there seems to be no adjustment built into your second, one-year contract regarding any special terms due to your 6 weeks of unpaid leave.

Under the current law, you have to work a full year, 365 days, to qualify for severance. The employer can pay it voluntarily out of fairness, and many do, even when an employee falls a bit short. After the first year, severance is earned on a month by month basis and there is no need to complete whole years. However, a person who leaves an employer and does not have continuous employment starts over if he returns to the same employer, and has to work a full year again to be legally guaranteed to receive severance for a subsequent partial year.

OP. Since you received your first year's severance already, your employer may argue that you have started over and that your leave at the beginning of the contract means you were in a new contract for less than one year. These two elements comprise the argument that you have to overcome.

You will have to show that the contracts were continuous, with no time gaps between; it helps if you worked for some weeks under the second contract before you took a six week vacation and that your employer did not make any attempt in the contract to adjust for the unpaid leave. In this case, your employment should be considered continuous and your employer owes you at least 10 months of severance. You should prevail with the labor board for this much. If you can agree upon this amount with your boss it might be better than a fight.

It's possible the labor board could agree to award you a whole year's severance, as there is an argument to be made that you completed your one year contract. However, I don't know if they have any special rules for lengthy periods of unpaid leave. It can also be argued that it is reasonable for them to deduct that time from your total contract time and base severance on actual time worked. If you end up at the labor board, please let us know how they view unpaid leave time as far as earning severance.
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YTMND



Joined: 16 Jan 2012
Location: You're the man now dog!!

PostPosted: Fri Jan 04, 2013 1:18 pm    Post subject: Reply with quote

Quote:
@YTMND. I was paid my first severance yes. I am getting my exit flight from them (i'll be flying out for a vacation, then coming back 3 weeks later so i'll be here to deal with the labor board), why is it different to the severance?


Why is what different to "the severance"? You must complete 1 year. You did, but you got paid for it. So, the clock reset and you need to complete another year. If you weren't paid at the end of the first year, then you get 1 month's salary plus 1/12 of your salary for every month you finish after that. Those are the rules, and you didn't play it right (or "safe" if you prefer).

The flight is a contractual matter, so it is not decided on by labor board. If neither of you paid pension, they could ask for both you and your employer to back pay. However, flights are only between you and your employer. You could be in Korea already and not need it, or you could be in a nearby country and not need as much. Perhaps there is too much variance in possibilities for them to care about. There is also no way to know how much a ticket should be. A few years back SMOE just gave a set airfare rate, I am not sure if they do the same now.

Check with pension to make sure you are getting pension contributions, if he paid for those 6 weeks then this can help to argue a position you did work for 365 days.

However, that's 1.5 months, it's not like you had 6 days off and could make them up over the year. Since he paid for the first year, I would think morally speaking you are owed 2/12 of your salary for March and April after the first year, roughly 333,3333 won. The clock would not have reset until you started your 6 weeks off if you had not been paid. If he paid your severance before those 2 months then technically you aren't entitled to it but could still make the argument and see what they say. If he says it started from day 1 of the second contract, then he isn't recognizing the 6 weeks off. Try to catch him in that argument. If he is recognizing the 6 weeks off, then he should morally pay for the 2 months. He might just pay the 2 months to save face or give extra time in the apartment if you want to look for a new school.


Last edited by YTMND on Fri Jan 04, 2013 2:47 pm; edited 1 time in total
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oppa637



Joined: 05 Dec 2011

PostPosted: Fri Jan 04, 2013 2:02 pm    Post subject: Reply with quote

Pretty sure you have to be employed for 365 days. Depending on when your contract says you started would make a difference I suppose or the day you signed it. But having no paystubs for the first 6 week I imagine, means that no taxes (insurance,pension) were paid during that time meaning you weren't employed i think? I think labor board might not side with you.
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ttompatz



Joined: 05 Sep 2005
Location: Kwangju, South Korea

PostPosted: Fri Jan 04, 2013 2:29 pm    Post subject: Reply with quote

schwa wrote:
Vacation is one thing, you're still under contract. Unpaid leave is a different animal.

If I'm wrong in this, please correct me, & I'll just stand down. But thats my understanding.



I will try to quickly un-complicate this:

Had it been his 1st year with said employer then he loses - he has not worked a full calendar year.

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.

If he worked 2 consecutive contracts and NOT taken his severance out at any point then he wins regardless of a period of unpaid leave - even if the leave was unpaid he was still in the employ of the employer.

Be employed for a full calendar year and severance rules apply - regardless of what someone in the policy division of the GPOE thinks - even if you did take an unauthorized day off sometime mid contract.
(HOWEVER - leave 1 day early and it is a different kettle of fish.)

.
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