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Severance if you work more than a year
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morrisfletcher



Joined: 21 Oct 2010

PostPosted: Sat Feb 18, 2012 6:58 pm    Post subject: Severance if you work more than a year Reply with quote

I finished working my first year at the end of December. I signed on for another year with the same school before my first contract ended. Recently, for reasons relating to things back home in Canada, I've decided that I will be leaving Korea at the outset of July.

1) What severance I am legally entitled to?
2) Should I be paid my severance now, for the first year?
3) Or, should I be paid severance for 18 months (1 year + 6 months in 2012), and receive this when I leave in July?
4) Do I get anything for the six months of the new contract, or do I forfeit that, having not completed a second full year?
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YTMND



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

PostPosted: Sun Feb 19, 2012 12:25 am    Post subject: Reply with quote

Quote:
1) What severance I am legally entitled to?


Looks like 18/12 of your current salary. I think it logically works out better to get one year at your first salary and half of your current salary.

Quote:
2) Should I be paid my severance now, for the first year?


This is up to you to negotiate. If you really need to go home and can't wait in Korea to take legal action, you might want to keep on nice terms with the employer. With mention of letters of reference for public school jobs, you could use them later on if you ever returned. It doesn't look like you are leaving because you don't like it in Korea.

Quote:
3) Or, should I be paid severance for 18 months (1 year + 6 months in 2012), and receive this when I leave in July?


You can put all your eggs in one basket if you want. Will they pay, no problems? Only you can determine that. We don't know how the school will react. Have they paid into pension? Do they pay regularly? How will they get a replacement teacher? Work with your school and see how it goes. If they see you have to leave, then they are likely to hold on to that money without a fight.


Quote:
4) Do I get anything for the six months of the new contract, or do I forfeit that, having not completed a second full year?


You only have to complete 1 year, then it is prorated. Law is on your side, but your circumstances put you in a position you may want to negotiate if the school balks at paying you 100%. If they do and you can stay in Korea to collect, then that's what I think most here would advise you to do.

Personally, I would work with the school and find something you both agree to.
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morrisfletcher



Joined: 21 Oct 2010

PostPosted: Sun Feb 19, 2012 12:39 am    Post subject: Reply with quote

Thanks for the help.

If have to go the route of forcing them to pay my severance....what is the time frame for that to 'actually' happen? I know that the time for them to legally pay me is 15 days from the last day of employment, but what do most people experience as a time frame from collecting? Especially for those situations when an employer does not willingly pay the severance?
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YTMND



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

PostPosted: Sun Feb 19, 2012 3:45 am    Post subject: Reply with quote

Quote:
If have to go the route of forcing them to pay my severance.


There should be no "if's", you are the horse's mouth. You are the one who would talk to the employer. It's February still. I find it very odd you are hatching a plan to collect on severance based on a premise you will have to leave in July and the employer won't pay you severance. But they will pay into pension, your salary, and any security deposits without any problems?
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iggyb



Joined: 29 Oct 2003

PostPosted: Sun Feb 19, 2012 10:13 am    Post subject: Reply with quote

The labor law only mentions "years" but there are two ways to read that: For example, 18 months can be "1 and half years" or "1 year and 6 months"...

I just finished 2 1/2 years with SMOE and got severance for all of it - including the partial year.

If the place where you work didn't give you severance when you finished the first year, I don't know why they would now with you still working. Maybe if they are really cooperative. But, you aren't entitled to it until you stop working at the place.
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TheUrbanMyth



Joined: 28 Jan 2003
Location: Retired

PostPosted: Sun Feb 19, 2012 3:52 pm    Post subject: Re: Severance if you work more than a year Reply with quote

morrisfletcher wrote:
I finished working my first year at the end of December. I signed on for another year with the same school before my first contract ended. Recently, for reasons relating to things back home in Canada, I've decided that I will be leaving Korea at the outset of July.

1) What severance I am legally entitled to?
2) Should I be paid my severance now, for the first year?
3) Or, should I be paid severance for 18 months (1 year + 6 months in 2012), and receive this when I leave in July?
4) Do I get anything for the six months of the new contract, or do I forfeit that, having not completed a second full year?


Unless the laws have recently changed ,(I'm sure Mr. ttompatz can let us know about it) here is how I understand it to be.

If you collect your severance at the end of the year you are NOT legally entitled to any severance at the second period...because you are finishing before the year.

HOWEVER if you wait to collect until the end of the second period (July) then you are entitled to 18 months of severance.

So the answers to all of your questions depend on what you decide to do.
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YTMND



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

PostPosted: Sun Feb 19, 2012 7:26 pm    Post subject: Reply with quote

Quote:
If you collect your severance at the end of the year you are NOT legally entitled to any severance at the second period


At the following site, they claim, "Employeer can choose to pay at the end of the year if an employmee is staying in the job or at the end, when the employee is leaving." - http://www.korea4expats.com/article-severance-pay-korea.html

I don't know how accurate that is, but if the employer can choose then I don't think it would reset. Perhaps, if you work one year at school A, then get paid severance, work at school B, then you need to complete the second.
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TheUrbanMyth



Joined: 28 Jan 2003
Location: Retired

PostPosted: Sun Feb 19, 2012 7:40 pm    Post subject: Reply with quote

YTMND wrote:
Quote:
If you collect your severance at the end of the year you are NOT legally entitled to any severance at the second period


At the following site, they claim, "Employeer can choose to pay at the end of the year if an employmee is staying in the job or at the end, when the employee is leaving." - http://www.korea4expats.com/article-severance-pay-korea.html

I don't know how accurate that is, but if the employer can choose then I don't think it would reset. Perhaps, if you work one year at school A, then get paid severance, work at school B, then you need to complete the second.


And none of that conflicts with what I said.

You receive severance pay when you complete your employment. (It's called severance for a reason.) If you then continue your employment AFTER receiving severance the clock starts again.

If on the other hand you do not collect severance but wait until the agreed upon period (more than one year) then it is pro-rated.
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YTMND



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

PostPosted: Sun Feb 19, 2012 9:59 pm    Post subject: Reply with quote

TheUrbanMyth wrote:
YTMND wrote:
Quote:
If you collect your severance at the end of the year you are NOT legally entitled to any severance at the second period


At the following site, they claim, "Employeer can choose to pay at the end of the year if an employmee is staying in the job or at the end, when the employee is leaving." - http://www.korea4expats.com/article-severance-pay-korea.html

I don't know how accurate that is, but if the employer can choose then I don't think it would reset. Perhaps, if you work one year at school A, then get paid severance, work at school B, then you need to complete the second.


And none of that conflicts with what I said.

You receive severance pay when you complete your employment. (It's called severance for a reason.) If you then continue your employment AFTER receiving severance the clock starts again.

If on the other hand you do not collect severance but wait until the agreed upon period (more than one year) then it is pro-rated.


It seems like you can receive severance money even if your employment isn't completed. The way I read the part I quoted was that the employer could choose to pay even though the teacher is continuing with that employer. Am I absolutely wrong in reading it this way?

Also, it is important to look at the "1 year rule". When you say "clock starts again", do you mean the employee has to work another full year? It appears that if the employer chooses to pay the severance after 1 year, the employee shouldn't be penalized for this if they only work 6 months in the second year.
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TheUrbanMyth



Joined: 28 Jan 2003
Location: Retired

PostPosted: Sun Feb 19, 2012 10:32 pm    Post subject: Reply with quote

YTMND wrote:
[q

It seems like you can receive severance money even if your employment isn't completed. The way I read the part I quoted was that the employer could choose to pay even though the teacher is continuing with that employer. Am I absolutely wrong in reading it this way?

Also, it is important to look at the "1 year rule". When you say "clock starts again", do you mean the employee has to work another full year? It appears that if the employer chooses to pay the severance after 1 year, the employee shouldn't be penalized for this if they only work 6 months in the second year.


Yes but severance is for working 12 months. Not six or 10 or 11. That is the way it goes. This is obviously something to be negotiated ahead of time before signing the contract in the first place.


It's only prorated when the employment is continuous BEYOND 12 months AND the employer has not paid severance yet.

The employer has an obligation to pay severance (the average of the last 3 months pay including OT) for every 12 months of work.
If you work for 12 months and then he pays you off...he has no obligation to pay you severance AGAIN for only six months of work. Not seeing how this penalizes the teacher. The teacher we are assuming still gets paid per month for any extra work.

Again it would be wise to talk about this beforehand and get an agreement in writing (the contract in other words).
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YTMND



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

PostPosted: Sun Feb 19, 2012 11:17 pm    Post subject: Reply with quote

Quote:
It's only prorated when the employment is continuous BEYOND 12 months AND the employer has not paid severance yet.


But if the employer "chooses" to pay at the end of the first year, important word there, then why should the employee be penalized for 6 additional months they work? It's a penalty because the employee would obviously lose half a month's salary.

Quote:
If you work for 12 months and then he pays you off...he has no obligation to pay you severance AGAIN for only six months of work. Not seeing how this penalizes the teacher.


Ask yourself why the employer should be allowed to "choose" to pay at the end of the first year.

My reasoning is that if the employer is going to give the employee a raise for continuing, like 100,000 more per month, then they are not going to want to be held responsible for severance based on that 100,000 raise as it relates to the first year. So, what they could do is pay the severance after 1 year, and only start over in terms of money, not time. This means it is in the second year, not the first.
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Wildbore



Joined: 17 Jun 2009

PostPosted: Mon Feb 20, 2012 7:09 am    Post subject: Reply with quote

YTMND wrote:
But if the employer "chooses" to pay at the end of the first year, important word there, then why should the employee be penalized for 6 additional months they work? It's a penalty because the employee would obviously lose half a month's salary.


Most one-year ESL contracts REQUIRE the employer to pay the severence after one year, regardless of whether severence actually occurs. Obviously, the employer "chooses" to pay it because he doesn't want to be sued by the employee for breach of contract.

YTMND wrote:
Ask yourself why the employer should be allowed to "choose" to pay at the end of the first year.


Because in most cases the employer has NO CHOICE. Most contracts stupulate mandatory payment after one year.

YTMND wrote:
My reasoning is that if the employer is going to give the employee a raise for continuing, like 100,000 more per month, then they are not going to want to be held responsible for severance based on that 100,000 raise as it relates to the first year. So, what they could do is pay the severance after 1 year, and only start over in terms of money, not time. This means it is in the second year, not the first.


Labor law is clear, retirement pay must be paid out on retirement, but may be paid out yearly upon the employee's request. If the employee signs a contract with yearly severence arrangement, the employee has made the request (via the contract) and the employer may fulfill that request, by depositing the 1-year severence.
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YTMND



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

PostPosted: Mon Feb 20, 2012 8:01 am    Post subject: Reply with quote

Quote:
Most one-year ESL contracts REQUIRE the employer to pay the severence after one year


Well, that is good to know, but that doesn't seem like enough to sue on. A teacher is continuing a second year without severance but they will sue while they finish the second year? That's one interesting second year. The employee would be strictly playing by the book with no consideration of the working relationship established from the first year. But, I guess it is possible. Not obvious to me, but possible.

Quote:
Labor law is clear, retirement pay must be paid out on retirement, but may be paid out yearly upon the employee's request.


Now you are bringing up 2 conflicting points here. The part I quoted stated the employer had the "choice". First if it is law, then it's law, and I am not here to dispute law. I am simply looking at practical logic of this all. Second, if it is law, then the employer doesn't have the choice as I quoted. They would be required. Are you saying what I quoted was incorrect? I am not looking for a challenge or "it's obvious". I am neutrally looking for clarity.

In the first part, you stated retirement pay must be paid out on retirement, but if the employee is going into their second year, then this would not be retirement. I am sorry, I am just confused by your wording. It's not going in the same direction as what you said before and what I quoted. I am not claiming to be an authority on this. I am neutrally looking for clarity.

Quote:
If the employee signs a contract with yearly severence arrangement, the employee has made the request (via the contract) and the employer may fulfill that request, by depositing the 1-year severence.


I don't think contractual obligations are something the employer "may" abide by, but rather something they must abide by. You stated the spirit of this direction by stating, "Because in most cases the employer has NO CHOICE. Most contracts stupulate mandatory payment after one year."

I don't know why you are holding 2 obviously different viewpoints. I am not looking to argue here. I am neutrally looking for clarity.
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TheUrbanMyth



Joined: 28 Jan 2003
Location: Retired

PostPosted: Mon Feb 20, 2012 6:13 pm    Post subject: Reply with quote

YTMND wrote:
[

(1) Well, that is good to know, but that doesn't seem like enough to sue on. A teacher is continuing a second year without severance but they will sue while they finish the second year?
That's one interesting second year. The employee would be strictly playing by the book with no consideration of the working relationship established from the first year. But, I guess it is possible. Not obvious to me, but possible.


(2) Now you are bringing up 2 conflicting points here. The part I quoted stated the employer had the "choice". First if it is law, then it's law, and I am not here to dispute law. I am simply looking at practical logic of this all. Second, if it is law, then the employer doesn't have the choice as I quoted. They would be required. Are you saying what I quoted was incorrect? I am not looking for a challenge or "it's obvious". I am neutrally looking for clarity.

(3) In the first part, you stated retirement pay must be paid out on retirement, but if the employee is going into their second year, then this would not be retirement. I am sorry, I am just confused by your wording. It's not going in the same direction as what you said before and what I quoted. I am not claiming to be an authority on this. I am neutrally looking for clarity.


(4) I don't think contractual obligations are something the employer "may" abide by, but rather something they must abide by. You stated the spirit of this direction by stating, "Because in most cases the employer has NO CHOICE. Most contracts stupulate mandatory payment after one year."

(5)I don't know why you are holding 2 obviously different viewpoints. I am not looking to argue here. I am neutrally looking for clarity.


I took the liberty of numbering your quotes for easy reference.


1. Severance is paid for EACH year. So if the employee FINISHED the second year he would also be paid severance.


2. There is a difference between "The Employer must pay severance" and "The Employer must pay severance at the end of retirement" That is where the choice comes in.


3. Yes retirement pay MUST be paid (usually upon retirement) but it doesn't HAVE to be deferred until retirement.


4. If the contract stipulates mandatory yearly payouts then that what both parties should go by. If not then whatever they have agreed upon or go by Korean Labor Law.


5. He's not holding 2 different viewpoints you are taking too literal a view. It's not one or the other it can be one in one situation and the other in another situation. It's flexible.
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YTMND



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

PostPosted: Mon Feb 20, 2012 8:40 pm    Post subject: Reply with quote

Quote:
So if the employee FINISHED the second year he would also be paid severance.


Well, my understanding is that after 1 year, it is prorated and the teacher does not have to finish a second year to get severance pay based on their work during that second year. So it is 1 month's salary plus 1/12-12/12 month's salary.

Quote:
2. There is a difference between "The Employer must pay severance" and "The Employer must pay severance at the end of retirement" That is where the choice comes in.


I was never disputing a choice. I was looking at why they would make the choice and how that would negatviely affect the employee where they have no say so in the matter (in theory). We can continue on this if it is not clear why I stated whatever made you reply this way. I don't clearly understand why you brought this up.

Quote:
it doesn't HAVE to be deferred until retirement.


And the crux of my point on this issue is that it should affect only the amount of money owed, not the time factor. Meaning, the teacher should not have to finish a 1 year contract again to get severance payments.

Can you cite an exact law (not just reference "the law") that says an employer has unilateral say so to pay 1 year and then reset the clock so that the teacher has to finish the second year to get any of the severance owed for that second year?

Quote:
If not then whatever they have agreed upon or go by Korean Labor Law.


That's why we are posting on here to see what the law is. Please don't just say "the law", what does it state if you know? I am seeing some arguments for and against setting the clock back.

Quote:
It's not one or the other it can be one in one situation and the other in another situation. It's flexible.


I am trying to find what it is in one situation and what it is in another situation. Unless there are 2 different bodies of "Korean Labor Law" and if this were to go to court, it wouldn't be a matter of flexibility or 2 situations. It would a rather one way path to find the law if it is there.

The premise is that the teacher worked one year, signed on for a second, and then the employer chose to pay severance early in the second contract period. If the contract were unclear, then what would the almighty Korean Law dictate? Would the teacher be bound to the employer's decision and have to finish a second year because they received severance pay for the first year, or would they be able to get a prorated amount like in the original poster's situation?
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