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Korean Job Discussion Forums
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ttompatz
Joined: 05 Sep 2005
Location: Kwangju, South Korea
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 Posted: Mon May 21, 2012 3:40 am Post subject: |
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| therandom9 wrote: |
Quick followup:one of my friends asked the Ministry of Labor a similar question awhile back, and received the following in response-
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| In case of fixed term labor contract, when a worker breaks labor contract without a reasonable reason, the employer may file his/her case with the civil court for monetary compensation based on the civil law not the labor law. |
This is the sort of thing I was worried about. Ttompatz, how does this square with what you mentioned earlier regarding the ability to leave at any time? |
You cannot contract to break the law.
You cannot contract for less than the law allows.
Labor law clearly defines what/who is an employee, their rights (including their right to quit at will without cause) and their obligations to an employer (none under law in regards to giving notice to quit).
Law supersedes any contract.
There has NEVER been a case (in any court of competent jurisdiction in Korea and YES, I have looked hard to find one) of an employee being sued by an employer for simply quitting never mind an employee losing such a case.
Leave when it suits you and don't lose any sleep over it.
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YTMND
Joined: 16 Jan 2012
Location: You're the man now dog!!
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| Posted: Mon May 21, 2012 4:11 am Post subject: |
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| therandom9 wrote: |
| It is much easier to work something out if you know your exact legal position in advance. |
That's partly true, but you don't want the school to always know you know the law or that you know how to negotiate.
The main reason is that it raises a red flag when you claim to know something. So, they look into the situation more. In your case, they would file papers earlier and have an advantage whereas if you don't talk to them in a sense you know "the law" they might not worry so much and miss a key factor somewhere. In short, don't make your enemy stronger.
I am trying to finish up a contract myself, and I want to get paid for May. I have another school lined up, but until 15 minutes ago (I just got an email), I wanted to get paid for June or part of. Now they are telling me students will have tests so they want to end the contract in May and not pay me for June. If I can wait them out 10 days, maybe I can get part of June and some of the airfare money (if not all). |
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therandom9
Joined: 10 May 2010
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| Posted: Mon May 21, 2012 6:35 am Post subject: |
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Thanks ttompatz, exactly what I needed to know.
YTMND, I do agree with you that it is a bad idea to tip your hand in that sense. I just meant that I wanted to know all of my worst cases before entering into any sort of negotiation. |
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ontheway
Joined: 24 Aug 2005
Location: Somewhere under the rainbow...
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| Posted: Mon May 21, 2012 8:20 am Post subject: |
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| therandom9 wrote: |
Quick followup:one of my friends asked the Ministry of Labor a similar question awhile back, and received the following in response-
| Quote: |
| In case of fixed term labor contract, when a worker breaks labor contract without a reasonable reason, the employer may file his/her case with the civil court for monetary compensation based on the civil law not the labor law. |
This is the sort of thing I was worried about. Ttompatz, how does this square with what you mentioned earlier regarding the ability to leave at any time? |
The information above from the Ministry of Labor is correct.
You are always free to quit a job. You are not a slave. Just as an employer is always free to fire you, they do have to pay 30 days pay, however, if they have no cause for immediate dismissal.
However, if you quit a job, without proper notice as required under your contract, you can be sued for damages. This happens under civil law, contract law, and Labor has no authority to override or superceed contract law in the case of breach of contract.
Labor can allow you to leave a job, they cannot prevent a civil suit.
To be sued for breach of contract you have to cause damage to your employer. The employer has the duty to mitigate (reduce to a minimum) such damage before suing. They can only recover for damage that cannot be avoided.
First, for most E2 teachers, there are Korean teachers or other native speakers who can take over the classes. If the students can all be taught by someone else who is available on the staff when you leave, then there will be few if any damages that the school can point to. This alone means there are very few instances of teachers who can be sued for breach.
However, if a school is left with students and has no one to teach them because of a breach of contract, then all income lost until the teacher is replaced plus all income lost for the normal retention period of students who leave the school due to the lack of a teacher can be recovered from the teacher who committed breach under such conditions. Again, this is extremely rare since most (but not all) schools can rearrange schedules and/or combine classes to avoid this scenario.
Second, there are mitigating factors and defenses, for example: If the school has breached the contract in a material way (that means something serious. If they promised you a color TV in your apt and you got none, that is not a material breach.) However, if the employer failed to pay salary, health insurance, pension or made some other material breach and failed to remedy the breach after a sufficient period and attempts at resolution, it would be nearly impossible for the employer to sue, even with serious damages.
Third, if you quit by giving proper notice according to the contract, there is no breach of contract and no suit can be successfully prosecuted since there is no cause of action.
In the OP's case, there is apparently no mention of notice within the contract. The OP also claims to not be a teacher, but to have to some special ability that is the basis of his employment. So, we have to speculate a bit.
If the OP were a teacher, or were performing a duty that is easily replaced, then he could easily be replaced with 60 days notice, which is considered standard these days. Giving 60 days notice would suffice. Further, in most cases, it is possible to find a teacher in less than 30 days with documents ready, so given the duty to mitigate damages, the school should still have no case with 30 days notice. In addition, since the school could likely cover the affected classes, there would likely be no damages.
If the OP is replaceable, then reasonable notice of 60 days at most, or 30 days as a safe minimum, should avoid any problems, even if the employer suffers damages through failure to mitigate and make a quick replacement of the OP.
However, the OP's special ability could be unique. In such a case there could be no other individual available to perform the same service. In such a case the OP could be irreplaceable. If so, a suit for whatever damages were incurres and unable to be mitigated by the employer could be the basis of a suit.
There is also the possibility of an order for "specific performance." This can be applied to labor contracts in the case of unique and irreplacable services. A court can order that an individual fulfill a contract as agreed when the damages that would ensue from nonperformance are unacceptably high and the unique skills of the worker cannot be replaced by any other individual. This would be an extremely rare (once in a generation) situation and despite the claims of the OP, I doubt that anyone that irreplaceable can be found working on an E2 visa or as a teacher. |
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therandom9
Joined: 10 May 2010
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| Posted: Mon May 21, 2012 9:10 am Post subject: |
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ontheway, incredibly snarky tone aside, I appreciate your post.
If you look back at my original post, I simply said that I do not teach English. There are many other things taught at hagwons in Korea. I did not want to be too specific since i do not know who reads these boards. Anyhow, you are correct that the subjects I teach are harder to replace, but not irreplaceable by any stretch.
In the areas I teach, the specific instructor's identity and reputation is somewhat important when parents make decisions to enroll their children. That was why I was wondering if quitting when the school was marketing you specifically was relevant. |
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ontheway
Joined: 24 Aug 2005
Location: Somewhere under the rainbow...
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| Posted: Mon May 21, 2012 10:14 am Post subject: |
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| therandom9 wrote: |
ontheway, incredibly snarky tone aside, I appreciate your post.
If you look back at my original post, I simply said that I do not teach English. There are many other things taught at hagwons in Korea. I did not want to be too specific since i do not know who reads these boards. Anyhow, you are correct that the subjects I teach are harder to replace, but not irreplaceable by any stretch.
In the areas I teach, the specific instructor's identity and reputation is somewhat important when parents make decisions to enroll their children. That was why I was wondering if quitting when the school was marketing you specifically was relevant. |
Sorry about the misunderstanding regarding your position.
Since you are a teacher at a hogwan, even though you teach other subjects, there are plenty of other teachers available to replace you. If you are especially marketable, they will have to find a replacement that is equally marketable. The should be paying more for such value.
If you have no major issues with your employer (contract terms met, salary etc paid) and if there is no urgency in your resigning, you should try to give either 30 or 60 days notice - depending on what works for you and how much consideration you want to give the school. The fact that the contract is silent on the issue doesn't make it impossible to leave the job legally and properly. |
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YTMND
Joined: 16 Jan 2012
Location: You're the man now dog!!
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| Posted: Mon May 21, 2012 10:25 am Post subject: |
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| That was why I was wondering if quitting when the school was marketing you specifically was relevant. |
If you have put yourself in a position where a school is marketing you specifically, you have just as many reasons to be concerned if things end on a good note.
Maybe a parent ends up not liking you. It has nothing to do with your performance but they simply don't like you. They communicate with others and give you a bad name.
You could give 2 months notice, walk away from the school without collecting the perks (airfare, pension, etc..) and still be in jeopardy if you want to come back.
If you are leaving the industry and later return, that in itself also can damage you. If you want to stop marketing yourself and maintaining the following you have, then you will need to start all over when you decide to return.
None of these 2 points have any bearing on your legal issues.
1. Legally, you are free to go.
2. Business speaking, you are doing what you do to you, no one else is doing it to you.
If I were Bozo the clown and I wanted to trade stocks instead, later to return to juggling, maybe I would change the color of my nose and hair. Create a new sales pitch. |
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luckylady
Joined: 30 Jan 2012
Location: u.s. of occupied territories
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| Posted: Mon May 21, 2012 2:40 pm Post subject: |
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you can always do what some folks do in a similar situation - claim an emergency of some kind back home and that you are obliged to leave immediately (or within a period of time you have already decided).
I also worked for a hakwon once that advertised myself, and another teacher, as part of their business but I left to work at a ps - they even provided an LOR; they just continued using my name and photo etc as one of the teachers who used to work there - for whatever reason, so maybe you are expressing more concern than is necessary. |
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therandom9
Joined: 10 May 2010
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| Posted: Mon May 21, 2012 7:36 pm Post subject: |
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| ontheway wrote: |
Since you are a teacher at a hogwan, even though you teach other subjects, there are plenty of other teachers available to replace you. If you are especially marketable, they will have to find a replacement that is equally marketable. The should be paying more for such value. |
This is a good point.
As far as business considerations go - I am aware of those factors, and it is NOT a given that I will leave. As stated before, however, I simply want to know my legal options before doing any negotiating, since that SIGNIFICANTLY affects my walkaway position in any negotiation. |
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Wildbore
Joined: 17 Jun 2009
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| Posted: Mon May 21, 2012 8:43 pm Post subject: |
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Probably 50,000 to consult a lawyer. You could try Gangnam Labor law firm. Very popular amongst ESL teachers in Seoul.
Or you could ask a Korean friend for a lawyer recommendation. Often you will see law offices around the courthouses or labor board. |
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