Korean Job Discussion Forums

[lifeinkorea]

[bassexpander]

[Brendon Carr]

Okay, English teachers, I followed a link from a blog which brought me here. Please understand that I am not in a position to represent individuals as clients, as I am a foreign lawyer who works for corporate clients at a large Korean law firm. I'm not trolling for clients here and will not help you if you call me (in fact, I'll be annoyed with you as I'm asking for no calls here). But as a result of my 12 years working for multinationals who employ people in Korea, I do know something about Korean law on this point and offer the following for your reference:

- If an employee is diagnosed with swine flu or another contagious disease such as tuberculosis (or a mental illness, or other disease which could be aggravated by work), under the Industrial Safety and Health Act the employer has an affirmative duty to keep that employee out of the workplace or to make other accommodations to enable work without posing a health hazard to the ill employee or to other employees or the business' invitees (i.e., the students of a hagwon). This obligation applies so long as the employee is contagious or suffering from the disease which may be aggravated by work.

- Ordinarily, the Labor Standards Act requires "just cause" for termination. Just cause requires some material fault attributable to the employee (fraud, criminal misconduct, dereliction of duty, etc.). It would generally not be found to exist in cases where an employee simply has a disagreement or dispute with the employer over pay or benefits � some egregious misconduct (punching the employer, say) must have occurred for there to be just cause for termination.

- An employer is legally permitted to terminate an employee if illness or injury renders the employee permanently unfit for work or unfit for a duration long enough to pose a "substantial burden" to the employer. Otherwise, the employee's job should be protected while he or she recovers from temporary disability due to illness or injury. Whether or not a week's or two weeks' leave poses a substantial burden to a hagwon is a key point here.

- Be aware that the first three (3) months of the contract may be designated as a "probationary period". Under the Labor Standards Act and its interpretation by the courts, employees' performance and fitness may be evaluated and the employee may be let go for reasons which do not meet the strict standard required by the just cause provision of the Labor Standards Act. That still doesn't mean no cause is necessary � just that the standard for termination in this early stage of the contract is less than ordinarily required. As I'm tossing this off on a Sunday afternoon without research, I have no idea about whether missing work due to having caught swine flu would be sufficient cause for lawful termination during a probationary period.

- Except if the contract or the Work Rules of the employer expressly provide for sick leave, nobody in Korea is entitled to "sick pay," "sick days," or "sick leave". There is no sick leave in Korea. Such leave is not provided by the Labor Standards Act or any other statute; provided, however, that in the case of a doctor-certified occupational illness or injury (i.e., you got it because of work � for example, an injury from a machine on a production line, or lung damage from exposure to chemicals, etc.), the employer must provide paid time off for recuperation � without using up the employee's leave balance � in accordance with a statutory schedule of recovery time for various grades of illness or injury. Otherwise, the employee days off due to illness would be chargeable against annual leave.

- Although the Labor Standards Act provides for 15 days base annual leave after completion of a full year of work, during the first year an employee is entitled to use annual leave which accrues at the rate of one day per month of service. Such leave is debited against the balance of leave which is earned at the completion of the year. Since there's no separate category of sick leave, the annual leave balance is important. If an employee in the ninth month of service were to come down with the flu and need time off, the employee would already be entitled to use his or her balance of nine days of annual leave for recuperation.

- The employee gets to decide when he or she will use annual leave, subject to good-faith consideration of the employer's business considerations. An employer may not arbitrarily deny the employee's request to use accrued leave. (That doesn't mean the employee can walk out on vacation at any time without reference to the employer's operational needs, however.)

- Although not mandatory, there is nothing in the law preventing an employer from allowing additional unpaid leave where an employee needs more time off for recuperation from illness or injury. Good Korean employers will grant such unpaid leave to their valued employees.

- If the employee is not ill any more, or not contagious, and the employer requests that the employee not come to work anyway because of the employer's belief others would be afraid of the employee, that's attributable to the employer's choice and such time off should be paid.

- When terminated, the employee is entitled to 30 days' notice of termination, or 30 days' pay in lieu of notice, regardless of the reason for termination. Everyone being terminated gets this money, except where the contract is merely being allowed to naturally lapse due to its date of expiration.

- When terminated, the employee must be notified of termination by a writing stating the reason for termination. Termination actions not notified in writing, or not stating the reason, are void. The written notice is important, as in the event of dispute the employer is stuck with the reason stated and must defend only that reason as the cause of termination. If the reason for termination is "You got swine flu and I didn't want to hire a temporary teacher or close my classes temporarily", the employer must write that down and be prepared to defend that reason to the judge or labor tribunal.

- An employee wrongfully terminated may bring an administrative complaint seeking reinstatement by complaining to the district labor tribunal of the National Labor Relations Commission. But don't tarry: The time bar for doing so is 90 days from the date of termination. After that date, the employee may only seek redress by civil litigation in the District Court. For an employee, the NLRC is the place to go as it is full of Communists and others with a strong prejudice against business owners (so is the court, really, but the labor tribunal is markedly less fair to employers).

- The labor tribunal's only remedy for wrongful termination is reinstatement with back wages and interest. (The tribunal can also award unpaid wages and claims for 30 days' notice pay.) If the employer has wrongfully terminated, the employee is put back in the position he or she would have been had the employer not wrongfully terminated.

- If terminated with three (3) months left on a 12-month contract and the dispute takes three (3) months or longer to be resolved in favor of the employee, the maximum damages the employee could receive would be the three (3) months' wages yet to be earned plus the benefits which would accrue upon completion of the contract. But the employer would have the right to require work if there is time remaining on the contract when the employee is reinstated (for example, as would be the case where the dispute is resolved in two (2) months, leaving a month on the contract). The employee cannot refuse to work and expect to be paid the balance of the contract. If there are benefits dependent on the completion of the contract (i.e., severance pay, reimbursement for airfare, etc.), and the employee chooses not to complete the contract, the employee cannot claim those benefits.

- If a wrongfully terminated employee finds another job, that doesn't extinguish the claim for wrongful termination and the wages which would have been earned if not for the employer's wrongful act. But the wage claim would be reduced by the amount earned at the replacement job during the disputed period. Legally, this is known as "covering" the damages, and an injured party in fact has an obligation to attempt to cover damages; this goes for both the employee and the employer � nobody gets to lay around and run up damages simply because the other party was wrong.

The above bullet points set out the general issues applicable to these swine-flu termination cases where the Labor Standards Act's provisions apply (the LSA applies to all workplaces with five (5) or more regular employees, and some provisions apply to workplaces with fewer employees). Obviously, each case � especially yours � is colored by the unique facts and circumstances applicable to the case. For this reason, do not rely on the statements of some poster in a web forum for legal advice. Talk to a lawyer or labor advocate (nomu-sa) about the specific facts of your matter.

As I've stated above and in other Dave's ESL Cafe threads, please do not contact me for more information or for assistance with your legal matters. For termination complaints to the labor tribunals of NLRC, I recommend you contact labor advocate Mr. Bong-Soo Jung of Kangnam Labor Law Firm at (02) 539 0098. When necessary, Mr. Jung works with a Canadian paralegal named Mr. Gerald Staruiala to help non-Korean speaking clients. They will take dispute matters for a reasonable fee, and also will consult with you for a reasonable hourly fee. Have questions and want to talk over your issues with an informed professional? Call Mr. Jung.

[iggyb]

Thanks Brendon.

I know how you've been harried in the past by the TESOLer crowd to the point of submission. Thanks for taking the time to give this review despite those past experiences.

And I hope everybody sees that he didn't have to do it and will respect his desire not to be contacted personally concerning individual issues...

It's very helpful having someone who is actually in the law field in Korea to give info like this...

[Gnawbert]

[roknroll]

Thanks for your time in providing this info Mr. Carr! As concerns the S flu, this is great background info.

So basically, the employer has a duty to keep the employee out of the workplace; allow for annual unpaid leave based on months worked; needs just cause for firing and in writing (S-flu likely not sufficient in this case, within first 3 months questionable); terminated employee is entitled to 30 days notice or in this case 30 day's pay in lieu of; employee can seek redress within 90 days through the NLRC (like that risqu� remark, lol) otherwise it's civil lit; employee needs to mitigate losses (employer too) ; call on an expert like Mr. Bong-Soo Jung--DON'T BOTHER MR. CARR.

[roknroll]

OPIee (Original Podcast Interviewee), if you take the advice of consulting a labor advocate, it would be interesting to know what would happen in the case that you found another job (mitigating your losses) and the case happens to get settled in 2 months as per the example given here, then your boss says he wants your services for the final month of the contract. In my unprofessional capacity, I'd guess that could only be achieved if you remain without work despite actively seeking employment. Guessing the E2 contract would be voided by a new E2 contract and your second E2 wages would be deducted from the unfair dismissal claim.

[bassexpander]

The story has had over 1100 downloads in just 3 days, which is a record for me... thanks for your support.

[D.D.]

[CentralCali]

One thing that, IMHO, is lacking from Korean law is monetary penalties against employers who unfairly dismiss their employees. Until the bosses are actually punished for their behavior, the behavior will not change.

[Zulethe]

[bassexpander]

[PatrickGHBusan]

So bascially Mark should read the legal advice here and act accordingly.

[hang10]

[CentralCali]