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R. S. Refugee
Joined: 29 Sep 2004
Location: Shangra La, ROK
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 Posted: Wed Mar 12, 2008 5:45 am Post subject: A weird severance question. And raise question. |
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First, let me say that speculation isn't very helpful to me regarding this question. I can speculate just fine on my own generally speaking.
What I'm looking for is some people who've personally experienced this question for feedback. And I don't think that there will be many (maybe not any).
OK. Here goes. I have an oddball time length on my current contract -- 7 mos. -- at my public school job. For some seemingly bizarre reason they wanted to have a 7-month contract because the teacher that I was replacing at a ps had did a runner after 5 months and 5 + 7 = 12.
So, of course, I know I won't be entitled to any severance after only 7 months. However, they have asked me to renew my contract by signing a new 12-month contract when the 7-month contract ends.
But, they say, I won't accrue any severance for the 7 months. That I'll only start accruing severance when the new 12-month contract starts. I think that's bs. I think that if I work continuously - a 7-month contract pluse the first 5 months of a new 1-year contract will accrue 12 months of severance. And then the remaining 7 months of the new 1-year contract will accrue another 7 months of severance. Then I will have accrued 19 months of severance - 7 from the first 7-month contract plus 12 from the following 12-month contract. They say no. I will only accrue 12 months from the new 1-year contract and that the preceding 7-month contract will not accrue any severance.
Any of you ever been in a similar situation? It's an oddball thing, I know. And I'll be lucky to find anyone who's been in a situation like this.
As you might guess, I'm dealing with my local supervisors at the school who seem shocked that I suffer from this misunderstanding.
Cheers.
Last edited by R. S. Refugee on Thu Mar 13, 2008 10:37 pm; edited 1 time in total |
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Missihippi
Joined: 22 Oct 2007
Location: Gwangmyeong
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| Posted: Wed Mar 12, 2008 6:11 am Post subject: |
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| Severence pay is paid at the completion of a 12 month contract as required by law. |
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Ut videam
Joined: 07 Dec 2007
Location: Pocheon-si, Gyeonggi-do
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| Posted: Wed Mar 12, 2008 6:19 am Post subject: |
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Disclaimer: I am not speaking from experience. That being said...
From the Labor Standards Act:
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Article 34 (Severance Pay System)
(1) An employer shall establish a severance pay system whereby an average wage of more than 30 days shall be paid for each year of consecutive years employed as a severance pay to a retired worker; however, if the worker was employed for less than one year, this shall not apply. |
It says "for each year of consecutive years employed." It says nothing about contract length. If there is no interruption between the first and second contracts, your employment there would seem to be continuous. Thus, your severance should kick in after month 5 of the new contract, as you will have been employed there continuously for one year at that point.
The law seems pretty clear, but then again... Might I suggest that you pose this question to one of the expat lawyers who prowls the K-blogosphere? |
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R. S. Refugee
Joined: 29 Sep 2004
Location: Shangra La, ROK
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| Posted: Wed Mar 12, 2008 6:21 am Post subject: |
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| Ut videam wrote: |
Disclaimer: I am not speaking from experience. That being said...
From the Labor Standards Act:
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Article 34 (Severance Pay System)
(1) An employer shall establish a severance pay system whereby an average wage of more than 30 days shall be paid for each year of consecutive years employed as a severance pay to a retired worker; however, if the worker was employed for less than one year, this shall not apply. |
It says "for each year of consecutive years employed." It says nothing about contract length. If there is no interruption between the first and second contracts, your employment there would seem to be continuous. Thus, your severance should kick in after month 5 of the new contract, as you will have been employed there continuously for one year at that point.
The law seems pretty clear, but then again... Might I suggest that you pose this question to one of the expat lawyers who prowls the K-blogosphere? |
Thanks for your thoughtful response. With a quote from the law no less. Very helpful and encouraging. |
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Dome Vans
Guest
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| Posted: Wed Mar 12, 2008 6:38 am Post subject: |
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Bummer. I know you wanted experienced replies but agree with what's been written before.
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However, If the employer-employee relation was terminated after the service year of one or more consecutive years, the employee is eligible to a severance pay. If the employee has not been paid the retirement pay even after satisfying the aforementioned conditions, he or she may file a petition with the regional labor office that has the jurisdiction over the district where the business concerned is located. |
http://english.molab.go.kr/english/Information/qna_view.jsp?idx=239
call 1350,1544-1350 or 82-31-345-5000(Comprehensive Counseling Center, Ministry of Labor).
They may be able to help you.
Seems that one year is the bench mark and over that can be paid. Would look into the one year total idea posted by Ut Videam.
If you re-sign for another year then you can expect a bigger severance at the end of the second contract as per the pro-rata system. But watch out for the wording in the new contract. |
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R. S. Refugee
Joined: 29 Sep 2004
Location: Shangra La, ROK
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| Posted: Wed Mar 12, 2008 6:58 am Post subject: |
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| Dome Vans wrote: |
Bummer. I know you wanted experienced replies but agree with what's been written before.
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However, If the employer-employee relation was terminated after the service year of one or more consecutive years, the employee is eligible to a severance pay. If the employee has not been paid the retirement pay even after satisfying the aforementioned conditions, he or she may file a petition with the regional labor office that has the jurisdiction over the district where the business concerned is located. |
http://english.molab.go.kr/english/Information/qna_view.jsp?idx=239
call 1350,1544-1350 or 82-31-345-5000(Comprehensive Counseling Center, Ministry of Labor).
They may be able to help you.
Seems that one year is the bench mark and over that can be paid. Would look into the one year total idea posted by Ut Videam.
If you re-sign for another year then you can expect a bigger severance at the end of the second contract as per the pro-rata system. But watch out for the wording in the new contract. |
The contract doesn't mention severance pay and it doesn't need to mention it. Severance pay is a legal requirement, not a job perc. As such it's inclusion in a contract is irrelevant unless the employer wishes to improve on the legal requirement and that's not too likely.
Thanks for the info. |
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Dome Vans
Guest
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| Posted: Wed Mar 12, 2008 7:15 am Post subject: |
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Agreed. I know that it's a legal requirement. Dealing with a public school might be a bit easier than a Hagwon when it comes to many issues, contract re-negotiation being one.
I would expect it to be impossible to receive severance after the one year mark in your new contract, basically five months in, without it being included, agreed and signed in the new contract when you re-sign. Would be detrimental to point to Labour laws half the way through the contract for something that could be negotiated and agreed now. Or just wait until the contract is up next year and get pro-rata severance..
Probably another crap reply, sorry for that. But my friend had problems with unwritten contract clauses involving a pay rise, mid contract, and being made to pay back money for this. Negotiating and agreeing and signing. |
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ttompatz
Joined: 05 Sep 2005
Location: Kwangju, South Korea
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| Posted: Wed Mar 12, 2008 7:31 am Post subject: |
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You are entitled to the equivalent of one months salary for each full 12 months of service after the completion of said 12 months.
Contract completion is NOT a requirement. Fulfillment of a full calendar year of employment is.
7 months in your first contract and 5 months into your 2nd contract fulfill the requirement for severance.
Unless you were able to negotiate a partial severance for the partial year worked you will be only entitled to 1 months severance when you leave after 19 months. There is NO legal entitlement for the partial year.
Article 34, sub 1-4 of the Korean labor standards act are pretty explicit on the matter.
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crazy_arcade
Joined: 05 Nov 2006
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| Posted: Wed Mar 12, 2008 7:37 am Post subject: |
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This is an interesting one.
The way I see it after you've been there for 12 months, you should get your severance. I think, if you ask for them to hold off on the severance until you finish your tenure at the school, then you could legally get the accrued severance. That's purely speculation, however. |
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R. S. Refugee
Joined: 29 Sep 2004
Location: Shangra La, ROK
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| Posted: Wed Mar 12, 2008 7:40 am Post subject: |
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| Dome Vans wrote: |
Agreed. I know that it's a legal requirement. Dealing with a public school might be a bit easier than a Hagwon when it comes to many issues, contract re-negotiation being one.
I would expect it to be impossible to receive severance after the one year mark in your new contract, basically five months in, without it being included, agreed and signed in the new contract when you re-sign. Would be detrimental to point to Labour laws half the way through the contract for something that could be negotiated now. Or just wait until the contract is up next year and get pro-rata severance..
Probably another crap reply, sorry for that. |
No, it's not a crap reply. It's a good question. However, I had no concern or expectation of receiving a 1-year severance payment when 12 months were up (e.g., 5 months into the next contract). I'm just concerned that I get paid the accrued amount for the total 19 months I work there at the end if I do a 7-month plus a 12-month contract. And my misinformed (I hope) colleagues were telling me I wouldn't get it for the 7-month portion even if I re-newed without a break in service.
I don't believe them for a moment though I do believe it is an honest misunderstanding of the law concerning this issue on their part. They're only teachers after all and this 7-month contract isn't something anyone deals with very often (or ever).
However, there are several other screwy issues that they are trying to deal with in confusing ways concerning this contract at the moment and it is getting a little messy. Thought I'd just stick to this one question for right now to keep it simple.
I've gotten great reviews of my work by my supervisor/co-teacher who thinks I'm a real hot-s-h-o-t teacher and almost all the kids (middle school) respond very positively to my teaching style. So, I like all the positive feedback and I've thought I would stay for another contract though I'd rather be in Seoul than out in the burbs.
But, they are suddenly confusing so many contract issues that I may decide to jump ship and look for a SMOE position when this contract ends.   |
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yingwenlaoshi
Joined: 12 Feb 2007
Location: ... location, location!
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| Posted: Wed Mar 12, 2008 9:30 am Post subject: |
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| Either way, you're losing 7 months. |
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cruisemonkey
Joined: 04 Jul 2005
Location: Hopefully, the same place as my luggage.
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| Posted: Wed Mar 12, 2008 1:25 pm Post subject: |
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Most contracts contain a clause under 'Term of Employment' stating -
"This employment period is not continuance and should not be considered as continuance of any former employment..."
If you re-sign, and have this clause in your new contract modified to read the new term of employment IS considered continuance of your former (i.e. present) employment, you would be entitled to pro-rated severance for the seven months of your first contract. In otherwords, when you finnish your second contract, you should receive severance pay for nineteen months of service.
If they really want you, they'll do it!  |
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cbclark4
Joined: 20 Aug 2006
Location: Masan
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| Posted: Wed Mar 12, 2008 5:50 pm Post subject: |
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Why don't you ask for a signing Bonus of let's say 1,2000,000w?
That would be approx. 7/12 of 2 million. |
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poet13
Joined: 22 Jan 2006
Location: Just over there....throwing lemons.
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| Posted: Wed Mar 12, 2008 7:47 pm Post subject: |
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"Unless you were able to negotiate a partial severance for the partial year worked you will be only entitled to 1 months severance when you leave after 19 months. There is NO legal entitlement for the partial year."
Can you clarify? I think you're saying 12 months.... |
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R. S. Refugee
Joined: 29 Sep 2004
Location: Shangra La, ROK
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| Posted: Wed Mar 12, 2008 9:14 pm Post subject: |
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| poet13 wrote: |
"Unless you were able to negotiate a partial severance for the partial year worked you will be only entitled to 1 months severance when you leave after 19 months. There is NO legal entitlement for the partial year."
Can you clarify? I think you're saying 12 months.... |
He's saying he thinks I can get only 12 months severance accrual, not 19. But he cites
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Article 34, sub 1-4 of the Korean labor standards act are pretty explicit on the matter. |
as his proof of this. However, looking at Article 34, clauses 1-4 on a sticky on this forum:
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Article 34 (Severance Pay System)
(1) An employer shall establish a severance pay system whereby an average wage of more than 30 days shall be paid for each year of consecutive years employed as a severance pay to a retired worker; however, if the worker was employed for less than one year, this shall not apply.
(2) In establishing the severance pay system stipulated in paragraph (1), a differential severance pay system shall not be permitted within one business.
(3) An employer may, at the request of workers, pay severance pay in advance for the period of continuous employment of the worker concerned by adjusting the balances of remunerations before his retirement, irrespective of the provisions of paragraph (1). In this case, the number of years of continuous employment for the computation of severance pay shall be counted anew from the moment the latest adjustment of balances has been made.
(4) In cases where an employer has enrolled in pension insurance program for retirees or a retirement lump sum payment trust as prescribed by the Presidential Decree (hereinafter referred to as �pension insurance, etc.�) for workers, whereby workers, as the insured or a beneficiary, receive lump sum payment at the time of retirement, or draw their pensions, it shall be deemed that the employer has set up a severance pay scheme in accordance with paragraph (1). The amount of lump sum by the retirement insurance, etc., however, shall not be smaller than that of severance pay pursuant to paragraph (1). <Amended by Act No. 5473, Dec. 24, 1997>
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I can't see anything that backs up the assertion that anything in these clauses suggests I can only 12 months accrual rather than 19 in this situation. Mind you, comprehending bureaucratic language isn't not one of my best skills. |
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