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Korean Labor Law and Contracts

 
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gerald.in.korea



Joined: 15 Oct 2007

PostPosted: Wed Sep 20, 2017 1:26 am    Post subject: Korean Labor Law and Contracts Reply with quote

This thread is for Korean Labor Law issues and Contract Issues.
Dave's ESL Cafe Policy is that the posts have to be 300 words or less, so if the question is long etc, then to ensure that the question is received send a Private Message.

Do not name the employer or the place of employment, in Korea Deformation and "Slander" is not a Civil issue (like the USA or UK) it falls under the Criminal Legal system due to elements of the Korean Constitution (as do the rights of Employees in Korea Foreign or Korean) and if derogatory statements are made and found posted the parties named will have the post as "proof" to initiate trouble with the Prosecutors office.

The first set of posts will be some "basics" on Korean Labor Law, Contract Hours, "breaks", Holidays, Sick Leave, Severance and what is Unfair Dismissal and what is lawful termination.

In addition, the first few posts will briefly discuss Airfare and Housing and why they are not covered by the Labor Standards Act in Korea but are covered by the Civil Acts (Commercial Act) and why Small Claims court is the correct venue to try to collect on those items.

The statue of limitations for Unpaid wages is 3 (THREE) years, the statue of Limitations for Unfair Dismissal is 3 (THREE) months.

The reason being that Unfair Dismissal would result in the Plaintiff (the employee) being reinstated in their old job, if the employee does not want to return to the work place then the employer must find a new employee. Unfair Dismissal is not based on the reasons for the Employer terminating the contract, but rather if they have followed the Administrative Procedures required by the Ministry of Labor as set out by the Labor Standards Act. When Employees are Dismissed the vacancy affects the Employer, the rest of the workers at the company and the companies clients so the Employer is given the ability to ensure that they can continue operations and the Labor Commission will give judgement within 90 Days so the statue of Limitations is 90 days.

Unpaid wages has a much greater statue of limitations because it only affect one person, the former employee and not the clients, the other workers at the company etc, so there is no "harm" to the increased time provided.

Unpaid wages include items such as Mandatory Pension Contributions, Mandatory Health Insurance Payments, Holiday Pay, Overtime payments and regular wages.

Social Benefits (Health and Pension) are paid by the Employer and with a smaller contribution by the Employee, so if the Employer has not paid Pension their contribution amount is the "unpaid wage".

There are many contracts posted were the working hours are "50 minutes Teaching Time 10 minute Break, 50 minutes 10 minute break". The 10 minutes are not a "break". An Employee must be able to use the time to their own advantage i.e. to pick up dry cleaning, etc. The "10 minutes" (if 6 times per day) add up to one hour a day, 5 hours a week or 260 hours a year, and in Korea the number of working hours in a month is 209.

There will be more posts on other parts of the "basics" to allow people to have a basic understanding of key items to follow.

If you have any questions on contract, etc, please feel free to post.
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gerald.in.korea



Joined: 15 Oct 2007

PostPosted: Wed Sep 20, 2017 3:15 am    Post subject: Termination in Month 11 of Contract, Letters of Release, etc Reply with quote

Termination in Month 11 of Contracts, Letters of Release, Letters of Termination and Unfair Dismissal....

Unfair Dismissal is not a ruling if the reasons for the termination were justified, but a ruling on if the Employer had followed the Administrative procedures required by the Labor Standards Act and verifiable by the Labor Inspectors.

The procedures that need to be followed are the Employer must give a series of Verbal Warnings (3 usually) and then Written Warnings (again 3 usually) which can be then followed by a Letter of Termination. The Employee must have the opportunity to correct the "action" (fix what ever the Employer is Warning about) and if the 6 Warnings are given is 6 days, it would be considered invalid because the Employee has not had a chance to correct the issue. The number of Verbal and Written Warnings must be clearly stated in the Rules of Employment, and Rules of Employment are required by any Company with 5 or more Employees. The Rules of Employment must also be readily available to the Employees (if you ask you should get a copy) and the Rules of Employment are really part of the Employment Agreement. Many times Employment Contracts wills say something like "... and to follow all the company rules and regulations..." which is hinting at the Rules of Employment.

Really, to terminate someone at the end of the 11 Month of their contract the Employer should be issuing a set of Verbal Warnings (they should be asking you to sign a receipt acknowledging you have received the verbal warning) to be followed by a set of Written Warnings over a period of 4-6 weeks.

There should be no surprises really.

If the Employer simply says "... Bob, the end of the month is going to be your last day sorry..." then it is Unfair Dismissal because they have not given you the opportunity to abide by the Company Rules.

Termination Notices must be in Written format, a piece of paper that is signed by the Employer. If by Email or Verbally then it is not considered a valid notice of termination. If you are not given a Valid Notice of Termination then the employer has to pay you until you do receive a valid Notice of Termination AND 30 days of Regular Wages because they did not give you a Notice of Termination.

For example, the employer sends you an email the 1st of the month saying your last day of work will be the 30th of the month.

The email is not a valid Letter of Termination.

On the 30th of the Month the Employer asks you to leave, he has terminated you [b][i]without Notice[/i] [/b]. The legal Claim is really for unpaid wages. The Wages owed are for 30 days they need to pay you for Termination without Notice, in addition you are still under contract until you receive a proper termination notice.

So, if you get the "final check" paid to your account, but they have not provided the written notice of termination, you are still employed and you are to be paid even though you are not physically located in the building.

If they have issued you a Termination Notice (assuming it is written and given to you on the 1st day of the 11 month) and on the 30th day of the 11 Month they have not given you a Letter of Release IN ADDITION to the Notice of Termination, you are still considered to be employed by the Ministry of Labor.

All Workers in Korea are entitled to earn wages from their labor, if the Employer does not give you the Letter of Release then they have not FULLY TERMINATED the employment conditions upon which your contract was established.

When Employers do not issue the LOR's to you when they terminate contracts before the expiration date of the contract the basic claim is unpaid wages, for they have not fully terminated the employment agreement and by not issuing the LOR are stating that you are still in their employment.

If you are still within the scope of the employment contract, they are still obligated to pay you wages.
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