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northway
Joined: 05 Jul 2010
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 Posted: Wed Oct 26, 2011 12:46 am Post subject: Contract vs. Labor Law - giving notice |
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One of my friends has a hagwon contract that mandates 60 day notice in order to break the contract. My understanding is that you need to give 30 days notice, per labor law, and that it's illegal to have a contract mandate 60 days notice. He found another job (not teaching) that wants him to start earlier than 60 days from the time he gave notice. Is it true that the law is 30 days and a contract can't supersede that?
He's got an F-visa, so the visa sponsorship isn't the issue, he's just wondering if he can leave earlier than 60 days.
Thanks in advance. |
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Wildbore
Joined: 17 Jun 2009
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| Posted: Wed Oct 26, 2011 1:59 am Post subject: |
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Completely wrong.
The Labour Standards act states the employer must provide the employee with 30 days notice or 30 days pay.
It doesn't say anything about how much time an employee must give.
Therefore, your friend must give 60 days notice, as per the contract. If he provides less time and that causes a disruption to the employer, your friend could be liable for damages.
Best idea for your friend is to try and negotiate a waiver of some of the notice time. If he is on good terms with his employer, they might let him off the hook sooner. |
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northway
Joined: 05 Jul 2010
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| Posted: Wed Oct 26, 2011 2:07 am Post subject: |
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| Ah, okay. It was actually in regards to his contract being posted here that I heard it was illegal, thus the misunderstanding. Thanks for the clarification. |
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koreatimes
Joined: 07 Jun 2011
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| Posted: Wed Oct 26, 2011 2:47 am Post subject: |
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Here's a trick I pulled. However, there was an ex-Korean girlfriend involved and maybe they sympathized with me.
I had to give 60 days notice also. Instead, I found a new school, moved my stuff into a goshiwon, and then just didn't show up 
Obviously, this pissed off the first school, but it made me a flight risk. They said, "You can't leave like that, we need 2 weeks to get a replacement. Come back now or else we will go to immigration and you will never be able to work in Korea again!!"
I came back for a final month and was able to leave after 30 days. They didn't want me around after they found a new teacher (I wonder why  )
If worse came to worst, it could just be counted as a sick day. So, I didn't see a problem testing the waters. |
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ttompatz
Joined: 05 Sep 2005
Location: Kwangju, South Korea
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| Posted: Wed Oct 26, 2011 4:38 am Post subject: |
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| Wildbore wrote: |
Completely wrong.
The Labour Standards act states the employer must provide the employee with 30 days notice or 30 days pay.
It doesn't say anything about how much time an employee must give.
Therefore, your friend must give 60 days notice, as per the contract. If he provides less time and that causes a disruption to the employer, your friend could be liable for damages.
Best idea for your friend is to try and negotiate a waiver of some of the notice time. If he is on good terms with his employer, they might let him off the hook sooner. |
Actually, it DOES say how much notice an employee needs to give - 0-days.
An employee cannot be forced, coerced or intimidated (and that includes "notice" clauses and threats of legal action) to work against their will.
An employee has the right to cease work at any time.
An employee cannot be penalized for failure to work (cannot be penalized for non performance of duty).
Labor law supersedes contract clauses.
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northway
Joined: 05 Jul 2010
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| Posted: Wed Oct 26, 2011 5:16 am Post subject: |
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| ttompatz wrote: |
| Wildbore wrote: |
Completely wrong.
The Labour Standards act states the employer must provide the employee with 30 days notice or 30 days pay.
It doesn't say anything about how much time an employee must give.
Therefore, your friend must give 60 days notice, as per the contract. If he provides less time and that causes a disruption to the employer, your friend could be liable for damages.
Best idea for your friend is to try and negotiate a waiver of some of the notice time. If he is on good terms with his employer, they might let him off the hook sooner. |
Actually, it DOES say how much notice an employee needs to give - 0-days.
An employee cannot be forced, coerced or intimidated (and that includes "notice" clauses and threats of legal action) to work against their will.
An employee has the right to cease work at any time.
An employee cannot be penalized for failure to work (cannot be penalized for non performance of duty).
Labor law supersedes contract clauses.
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Even if they move from one workplace to another within the contract period? |
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koreatimes
Joined: 07 Jun 2011
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| Posted: Wed Oct 26, 2011 5:20 am Post subject: |
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| While I support ttompatz's stance, I don't think morally or practically you should give no notice. By all means make it obvious you will leave, but you should also work with them to get a replacement. |
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northway
Joined: 05 Jul 2010
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| Posted: Wed Oct 26, 2011 5:30 am Post subject: |
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| koreatimes wrote: |
| While I support ttompatz's stance, I don't think morally or practically you should give no notice. By all means make it obvious you will leave, but you should also work with them to get a replacement. |
In this situation, he's gave notice almost two weeks ago, but they're insisting on a full sixty days. |
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ontheway
Joined: 24 Aug 2005
Location: Somewhere under the rainbow...
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| Posted: Wed Oct 26, 2011 5:53 am Post subject: |
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| ttompatz wrote: |
| Wildbore wrote: |
Completely wrong.
The Labour Standards act states the employer must provide the employee with 30 days notice or 30 days pay.
It doesn't say anything about how much time an employee must give.
Therefore, your friend must give 60 days notice, as per the contract. If he provides less time and that causes a disruption to the employer, your friend could be liable for damages.
Best idea for your friend is to try and negotiate a waiver of some of the notice time. If he is on good terms with his employer, they might let him off the hook sooner. |
Actually, it DOES say how much notice an employee needs to give - 0-days.
An employee cannot be forced, coerced or intimidated (and that includes "notice" clauses and threats of legal action) to work against their will.
An employee has the right to cease work at any time.
An employee cannot be penalized for failure to work (cannot be penalized for non performance of duty).
Labor law supersedes contract clauses.
. |
What Ttompatz wrote is dangerously wrong.
While it is true that you are not a slave and you can of course quit at any time, it does not mean that you are free from your obligations under the contract.
If the contract says 30 days notice, you must give 30 days. If the contract says 60 days you must give 60 days. You can be held liable for all damages if you do not follow the contract.
There is NO labor law that relieves you from your obligations under the contract.
If an employee, on any visa or a Korean citizen, quits without following the contract he or she can be held liable for damages. It is possible for the damages to exceed a year's pay, so it's always best to follow the contract. (The school must, of course, mitigate the damages by whatever reasonable means are readily available.)
Likewise, for the employer, there is no labor law that forces the employer to keep you working. He can always dismiss you immediately. He is generally (but not always) obligated to pay you for 30 days if you are dismissed without notice - but he does not have to keep you working. Just as the employee is not a slave, the employer cannot be forced to keep you actually working. The contract still trumps labor law if it requires more than 30 days notice, then the employer may have to pay or play for more than 30 days, up to the contractual requirement.
In cases where keeping the employee working will harm the business, and for a variety of other reasons, it is legal for the employer to dismiss a worker immediately and pay nothing under labor law. However, he must still follow the contract if its terms require certain procedures and notification times. |
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koreatimes
Joined: 07 Jun 2011
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| Posted: Wed Oct 26, 2011 6:39 am Post subject: |
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| In this situation, he's gave notice almost two weeks ago, but they're insisting on a full sixty days. |
I would use 1 month as a bare minimum. With the new rules, it takes 12 weeks for someone to get their documents abroad. I think 30 days is more than reasonable. |
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ttompatz
Joined: 05 Sep 2005
Location: Kwangju, South Korea
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| Posted: Wed Oct 26, 2011 9:56 am Post subject: |
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| ontheway wrote: |
What Ttompatz wrote is dangerously wrong.
While it is true that you are not a slave and you can of course quit at any time, it does not mean that you are free from your obligations under the contract.
If the contract says 30 days notice, you must give 30 days. If the contract says 60 days you must give 60 days. You can be held liable for all damages if you do not follow the contract.
There is NO labor law that relieves you from your obligations under the contract.
If an employee, on any visa or a Korean citizen, quits without following the contract he or she can be held liable for damages. It is possible for the damages to exceed a year's pay, so it's always best to follow the contract. (The school must, of course, mitigate the damages by whatever reasonable means are readily available.)
Likewise, for the employer, there is no labor law that forces the employer to keep you working. He can always dismiss you immediately. He is generally (but not always) obligated to pay you for 30 days if you are dismissed without notice - but he does not have to keep you working. Just as the employee is not a slave, the employer cannot be forced to keep you actually working. The contract still trumps labor law if it requires more than 30 days notice, then the employer may have to pay or play for more than 30 days, up to the contractual requirement.
In cases where keeping the employee working will harm the business, and for a variety of other reasons, it is legal for the employer to dismiss a worker immediately and pay nothing under labor law. However, he must still follow the contract if its terms require certain procedures and notification times. |
Name just ONE documented case in Korea.
I can state that in more than 10 years of doing this specific type of work dealing with foreign, migrant workers that I am not aware of ANY case where any employee was held liable for quitting without notice and I have also checked in 7 of the larger judicial districts (including Seoul) and have found NO CASE.
Contrary to your opinion the labor board can and often does force employers to give pay or notice (30 days) to employees unless the employer can show "where a worker has caused considerable
difficulties to business, or damage to properties on purpose"; also under the labor code.
Truth be told, the vast majority of contracts used in the ESL industry in Korea contain multiple voidable and/or outright illegal clauses.
Article 15 (Labor Contract contrary to This Act)
(1) A labor contract which establishes working conditions
which do not meet the standards provided for in this Act shall
be null and void to that extent.
(2) Those conditions invalidated in accordance with the
provisions of paragraph (1) shall be governed by the standards
provided in this Act.
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ontheway
Joined: 24 Aug 2005
Location: Somewhere under the rainbow...
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| Posted: Wed Oct 26, 2011 11:35 am Post subject: |
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| ontheway wrote: |
What Ttompatz wrote is dangerously wrong.
While it is true that you are not a slave and you can of course quit at any time, it does not mean that you are free from your obligations under the contract.
If the contract says 30 days notice, you must give 30 days. If the contract says 60 days you must give 60 days. You can be held liable for all damages if you do not follow the contract.
There is NO labor law that relieves you from your obligations under the contract.
If an employee, on any visa or a Korean citizen, quits without following the contract he or she can be held liable for damages. It is possible for the damages to exceed a year's pay, so it's always best to follow the contract. (The school must, of course, mitigate the damages by whatever reasonable means are readily available.)
Likewise, for the employer, there is no labor law that forces the employer to keep you working. He can always dismiss you immediately. He is generally (but not always) obligated to pay you for 30 days if you are dismissed without notice - but he does not have to keep you working. Just as the employee is not a slave, the employer cannot be forced to keep you actually working. The contract still trumps labor law if it requires more than 30 days notice, then the employer may have to pay or play for more than 30 days, up to the contractual requirement.
In cases where keeping the employee working will harm the business, and for a variety of other reasons, it is legal for the employer to dismiss a worker immediately and pay nothing under labor law. However, he must still follow the contract if its terms require certain procedures and notification times. |
| ttompatz wrote: |
Name just ONE documented case in Korea.
I can state that in more than 10 years of doing this specific type of work dealing with foreign, migrant workers that I am not aware of ANY case where any employee was held liable for quitting without notice and I have also checked in 7 of the larger judicial districts (including Seoul) and have found NO CASE. |
No, I will not give you any references. The cases I'm familiar with are the ones where I've participated as an English language paralegal doing Legal writing and editing, and communication with foreign teachers and foreign legal authorities on behalf of a Seoul Law Firm for lawsuits and legal action involving foreign teachers in Korea. I have an obligation to maintain confidentiality. These include cases where teachers have followed bad advice from other teachers and posters, cases involving fines, deportation and bans on returning, cases involving extradition, and cases involving incarceration. The facts, details, parties represented, charges and outcomes are all confidential. As you should also be aware, it is quite common for individuals in Korea to make payments and settlements outside of court to avoid judgements that would be part of the public record and to escape criminal charges and prison time.
But, yes, teachers can and do quit without notice, in violation of their contracts without being sued.
In a large percentage of these cases it is the teacher who is the problem and the school is happy to be rid of the teacher without having to give notice. The benefit to the school of being free from the contract without giving notice to the teacher, without 30 days pay and without legal action exceeds damages caused by the breach of contract by the early departing teacher.
In most cases involving damages the actual damages are small, the school is able to mitigate to keep damages small, and the cost and difficulty of pursuit exceeds the value recoverable, especially in the case of the large number of teachers whose worldwide net assets fall below $10,000, so legal action is not advisable.
| ttompatz wrote: |
Contrary to your opinion the labor board can and often does force employers to give pay or notice (30 days) to employees unless the employer can show "where a worker has caused considerable
difficulties to business, or damage to properties on purpose"; also under the labor code. |
This is not contrary to what I wrote above, it is nearly identical to what I wrote above. (I highlighted it for you so it will be easier for you to find.)
Employers do not have to give notice or pay when workers harm the business - such action is common and commonly legitimate. Workers fired without notice for just cause are generally aware of their own guilt, aware that they caused damages and so they do not file to recover for wages for lack of notice.
| ttompatz wrote: |
Truth be told, the vast majority of contracts used in the ESL industry in Korea contain multiple voidable and/or outright illegal clauses.
Article 15 (Labor Contract contrary to This Act)
(1) A labor contract which establishes working conditions
which do not meet the standards provided for in this Act shall
be null and void to that extent.(2) Those conditions invalidated in accordance with the
provisions of paragraph (1) shall be governed by the standards
provided in this Act. |
Although it is not a majority, there are contracts that contain voidable clauses. As you can see from your own quoted material, while such voidable clauses are null and void, the rest of the contract remains in force.
Contrary to the popular sentiment here on Dave's, you cannot escape responsiblity for honoring your obligations under a contract just because some of the contract clauses may be void or voidable. |
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koreatimes
Joined: 07 Jun 2011
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| Posted: Wed Oct 26, 2011 3:45 pm Post subject: |
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| Employers do not have to give notice or pay when workers harm the business - such action is common and commonly legitimate. |
Commonly legitimate is mob rule mentality. If the gangster thugs say so, then it's ok. No, it's not ok, and no it is not legitimate. If you are going to ok employers not giving notice, then you need to do the same with employees.
| Quote: |
| you cannot escape responsiblity for honoring your obligations under a contract just because some of the contract clauses may be void or voidable |
This is a wonderful tactic people in China pull. It happens with employment and also with buying things. I will go into a store, forget the fact they have fake products, they try to sell you extras as if that is PART of the deal. For employment, they tell you a schedule, and then they break that schedule up so you are sitting around for hours. It is a terrible split shift schedule. And then they defend their actions with the same thinking process that you are OBLIGATED under some grand scheme (the contract, the purchase, whatever) to see the thing through because you agreed to a "grand scheme" that was NEVER a portion.
I'll illustrate. In China, you can always negotiate the price to be lower in many cases. I go into the store to buy item A, then I mention item B to them. They have already handed me item A, and we walk over to item B. Then, I take the total for items A and B, and I offer to pay for both at a lower total amount. Sometimes this works and the store gets my money, other times, I simply hand them back item A and walk out. They have a baffled look on their face. Why didn't this foreigner buy item A? He must be crazy.
No, I am NOT obligated to purchase item A, even though I carried it to B and later decided I wanted neither. I am FREE to go. You are free to shelve item A back on the shelf if you don't like my offer.
With working, it is the same thing. I might agree to do things in a contract, but when clauses are interpreted differently between employer and employee, the employee is not obligated to perform a duty in the contract the way the employer interprets it. Both parties have to interpret it the same way, and that is UNAVOIDABLE. |
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northway
Joined: 05 Jul 2010
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| Posted: Wed Oct 26, 2011 7:40 pm Post subject: |
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| So...no consensus, it would seem. |
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koreatimes
Joined: 07 Jun 2011
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| Posted: Wed Oct 26, 2011 9:40 pm Post subject: |
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| That would be overly optimistic. |
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