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Joe Boxer
Joined: 25 Dec 2007
Location: Bundang, South Korea
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 Posted: Tue Aug 14, 2012 11:03 pm Post subject: |
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| ttompatz wrote: |
| Joe Boxer wrote: |
Anyone else? Patrick? ttom?
Specifically, the above (bolded) claim. Do you accept it as fact? Yes or no? No waffling, or debating as to whether the OP should or shouldn't pursue. |
Article 23 requires:
(1) No employer shall dismiss, lay off, suspend, or transfer
a worker, or reduce wages, or take other punitive measures
(hereinafter referred to as �unfair dismissal, etc.�) against a
worker without justifiable reasons.
However Article 26 allows:
... or where a worker has caused considerable difficulties to business, or damage to properties on purpose ...
AND disruptions caused by conflict between a temporary worker (one on a 1 year contract) and a permanent worker (unionized staff) WILL BE (considerable personal experience with the labor board) considered to be classed as "considerable difficulties to business".
The noisy wheel does not get the grease; they get replaced with a new wheel.
Unlike at home, here they are considered to be a disruption to the flow of business (including the business of education) would be subject to transfer (the usual case for regular employees) or termination (this case - with a LOR to allow an easy transition to a new employer or a D10 visa).
If you can point to ONE documented similar case (court or labor tribunal) IN KOREA that sets a precedent other than that I would love to hear about it (it would make other cases much easier to deal with).
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ttom,
Going by what you posted above, article 26 simply gives examples of "just cause" (certain damages, disruptions).
And that's what I've been saying all along, that the employer MUST have just cause. Regardless of the length of time of employment.
Did the employer have just cause to fire the OP? With the little information given in the OP, I don't think any of us know. But the OP could find out via a labor lawyer, and could sue if it turns out that it can be proven that he was fired unjustly.
So, regarding this:
| Joe Boxer wrote: |
| Me: If you are fired with less than 6-month's service to the company, you can still sue for wrongful dismissal, if there was no just cause for being dismissed. |
YTMND: No
ttom: No (unless given proof, right?)
Patrick:
POINT OF CLARIFICATION: In the above bolded quote, "you" refers to E2 visa holders in general (not the OP specifically). |
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YTMND
Joined: 16 Jan 2012
Location: You're the man now dog!!
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| Posted: Tue Aug 14, 2012 11:29 pm Post subject: |
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| Quote: |
| the employer MUST have just cause. Regardless of the length of time of employment. |
Why does the employer need just cause, but the employee doesn't? Schools often ask why, but if you give notice you do not need to give a reason.
"It sounds somewhat vague as it is a definition abstracted from numerous previous court rulings. The following list shows some specific reasons for dismissal that have been recognized by courts.
Failure to follow instructions on job or personnel management
Unauthorized leave of absence
Early-leaving without approval, negligence
Poor performance at work
Physical or verbal violence at work
Criminal offences outside workplace
Obstruction of business, violation of the company rules
Causing financial damages to the company
Undermining the company�s reputation
Violating work rules and safety rules
Forging educational or professional attainment"
http://www.koreanlaborlaw.com/basic-legal-requirements-for-dismissal-in-korea/
They could just say the teacher failed to follow instructions or poor performance. Done.
The "just cause" clause seems to be related more for gender issues and non-payment (specifically, the month the employee would have worked if they had been given notice). It could also be addressing Korean workers, not foreigners. Are there foreigners who can sue because there is no "just cause" in your home country?
It seems dismissal would be unfair more so on grounds that a foreigner is being hired at a lower salary and as a result kicking a native out of their job. If this were the opposite in Korea, which we do see now, foreigners often make more than their counterparts. Korea has already decided to downsize the number of teachers in the public school system, so you are going against the grain if you are to argue the courts would not allow the dismissal.
Joe Boxer, I challenge you to stop asking us our opinions and give us one case scenario where a teacher on an E2 visa was paid and sued their school winning either more money or was reinstated.
You simply do not have a case until you show some precedent. Are you trying to establish one instead? |
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Joe Boxer
Joined: 25 Dec 2007
Location: Bundang, South Korea
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| Posted: Wed Aug 15, 2012 12:08 am Post subject: |
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| YTMND wrote: |
| Quote: |
| the employer MUST have just cause. Regardless of the length of time of employment. |
Why does the employer need just cause, but the employee doesn't? Schools often ask why, but if you give notice you do not need to give a reason.
"It sounds somewhat vague as it is a definition abstracted from numerous previous court rulings. The following list shows some specific reasons for dismissal that have been recognized by courts.
Failure to follow instructions on job or personnel management
Unauthorized leave of absence
Early-leaving without approval, negligence
Poor performance at work
Physical or verbal violence at work
Criminal offences outside workplace
Obstruction of business, violation of the company rules
Causing financial damages to the company
Undermining the company�s reputation
Violating work rules and safety rules
Forging educational or professional attainment"
http://www.koreanlaborlaw.com/basic-legal-requirements-for-dismissal-in-korea/
They could just say the teacher failed to follow instructions or poor performance. Done.
The "just cause" clause seems to be related more for gender issues and non-payment (specifically, the month the employee would have worked if they had been given notice). It could also be addressing Korean workers, not foreigners. Are there foreigners who can sue because there is no "just cause" in your home country?
Joe Boxer, I challenge you to stop asking us our opinions and give us one case scenario where a teacher on an E2 visa was paid and sued their school winning either more money or was reinstated.
You simply do not have a case until you show some precedent. Are you trying to establish one instead? |
That list of "reasons for dismissal" is really unnecessary. ttom already posted some earlier, and I told him that yes, that's what I've been saying all along, that the employer must have just cause (perhaps one of the reasons you stated above).
So, no argument from me about that.
| Quote: |
| ...give us one case scenario where a teacher on an E2 visa was paid and sued their school winning either more money or was reinstated. |
Well, is that what we're really arguing at this point? I'm arguing that an E2 teacher, fired before the 6-month mark, can still be heard by the labor board and argue in court for wrongful dismissal. Remember, I'm arguing that:
| Quote: |
| Me: If you are fired with less than 6-month's service to the company, you can still sue for wrongful dismissal, if there was no just cause for being dismissed. |
^That's what you are on record as arguing against.
And I intend to prove you wrong, not to be an ass, but so that people will stop giving false information to other teachers.
After the four of us (me, you, ttom and Patrick) get past that point, we can get into:
-whether cases have been won
-whether we think the OP has a case
-whether or not the OP should just "move on". |
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YTMND
Joined: 16 Jan 2012
Location: You're the man now dog!!
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| Posted: Wed Aug 15, 2012 1:57 am Post subject: |
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| Quote: |
| that's what I've been saying all along, that the employer must have just cause (perhaps one of the reasons you stated above). |
No you haven't. You seem to have selective logic. I will do the same you tried to do earlier.
You: You must have just cause.
Hagwon: Ok, I'll pick one.
Does that mean they actually have just cause or they just picked one (meaning made up a reason to fire you to appease the labor board)?
| Quote: |
| And I intend to prove you wrong, not to be an ass, but so that people will stop giving false information to other teachers. |
Then show one case. The fact you say "intend to" and you actually "aren't" indicates more strongly you can't. How many posts will you make without actually proving your claim? There is no difference between what I challenged you to do and what you stated.
Show us one employee that has done what you asserted and won. Let's see it. Stop replying to my arguments and provide some proof of your own. Changing what I stated or making up red herrings doesn't prove your claim.
Where is an incident where a teacher sued before 6 months after being paid, after getting a notice of termination, and was on an E2?
If this is not what you are claiming, then simply ignore that challenge and provide one case that supports what you are stating then. The ball has been in your court for several posts now and you have provided us with nothing to support you on.
If you are truly trying to help us and not be a jerk about it, provide one case where a teacher was an on E2, was given a notice of termination, paid in full and sued the school for extra money (or to get reinstated). |
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Joe Boxer
Joined: 25 Dec 2007
Location: Bundang, South Korea
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| Posted: Wed Aug 15, 2012 3:13 am Post subject: |
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YTMND, calm down there, big guy.
I know that my word alone will not be enough for you and your buddies, so give me a chance to get something together that will convince you all, Ok?
In the meantime, let's get the scoreboard filled-out. Still waiting for PatrickGHBusan:
| Quote: |
| Me: If you (E2 visa holder) are fired with less than 6-month's service to the company, you can still sue for wrongful dismissal, if there was no just cause for being dismissed. |
YTMND: No
ttom: No
Patrick: |
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schwa
Joined: 18 Jan 2003
Location: Yap
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| Posted: Wed Aug 15, 2012 3:40 am Post subject: |
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OP never came back to the thread she started. I'm guessing frivolous claims based on personal failure to fit in or accept criticism & looking to divert blame.
Granted, some Korean PS co-teachers can be difficult to work with. But unless the OP responds with more details, I'm going to assume that she herself contributed to the difficulties. I've seen this scenario several times & public schools dont get rid of foreign teachers lightly.
Additional claims, phhht.
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slothrop
Joined: 03 Feb 2003
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| Posted: Wed Aug 15, 2012 5:14 am Post subject: |
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edit
Last edited by slothrop on Thu Sep 06, 2012 10:39 pm; edited 1 time in total |
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YTMND
Joined: 16 Jan 2012
Location: You're the man now dog!!
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| Posted: Wed Aug 15, 2012 5:57 am Post subject: |
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| Quote: |
| actually there is a korean saying that translates as 'the baby who cries the loudest gets the most milk' |
And we are the cows providing more milk without more pay.
How to Raise a Cow for Slaughter
1. Purchase weaned or backgrounded cattle. = pay the recruiter to get a teacher
2. Put the cattle out to pasture. = show the teacher their classroom, don't let them leave
3. Provide sufficient balanced nutrition to confined cattle. = treat teacher to kimchi
4. Manage the cows' health. = threaten to fire them if they take another sick day
5. Sell your cattle to slaughterhouses, markets or other farmers, or slaughter them yourself and sell the beef to butchers. = tell the recruiter the teacher is not qualified and get another one when the teacher is not "producing"
http://www.ehow.com/how_8605677_raise-cow-slaughter.html
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some waygug-in
Joined: 25 Jan 2003
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| Posted: Wed Aug 15, 2012 6:05 am Post subject: |
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| slothrop wrote: |
| ttompatz wrote: |
The noisy wheel does not get the grease; they get replaced with a new wheel.
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confucius say... 'the noisy wheel that is spare tire(on a one year contract) does not get the grease; they get replaced with a new wheel.'
hehehehe
actually there is a korean saying that translates as 'the baby who cries the loudest gets the most milk' |
Yes, but FT's complaints are not viewed in the same manner, nor are they
treated in the same manner as those of Koreans.
When Koreans cry about the FT, you can bet they get attention.
When FT's cry about anything, they can expect to be shunned at least or
replaced at most.
Last edited by some waygug-in on Thu Aug 16, 2012 4:58 am; edited 1 time in total |
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slothrop
Joined: 03 Feb 2003
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| Posted: Wed Aug 15, 2012 6:18 am Post subject: |
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edit
Last edited by slothrop on Thu Sep 06, 2012 10:39 pm; edited 1 time in total |
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iggyb
Joined: 29 Oct 2003
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| Posted: Wed Aug 15, 2012 6:56 am Post subject: |
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| Quote: |
| Are there foreigners who can sue because there is no "just cause" in your home country? |
Yes. Foreigerns are scum. Especially those from Western rich nations who go abroad. Worse than worthless scum. Especially those lsers who get E2s in Korea. They should be treated with as much disrespect as they deserve! They are guests in Korea, don't you know! Worse than guests! They deserve NOTHING! I tell you! Nothing! Nothing but the contempt they deserve! Foreign scum!!
Anyway...
I would bet their have been foreigners in pretty much every nation the common expat ESLer in Korea comes from who have sued a native company for wrongful termination and won.
(And no, I'm not going to google to "prove" it.)
It won't be migrant farm workers. -- Like I wrote before, you aren't going to see too many people try for wrongful terminiation suits unless they make a lot of money and/or they work in a profession where getting another job is highly dependant on how you left your last one or if you have ever been fired from a job within the profession.
I could actually see teachers in the US file a suit, because not being renewed or being asked to resign in lieu of not being renewed makes it difficult to be hired elsewhere in a public school.
We do have one case of a suit based on wrongful terminiation in Korea noted here at Dave's: The uni prof who had his contract terminated for double teaching at a university in China who sued.
I think he'll lose his suit, because the article posted here seemed to indicate his contract said double employment was a grounds for being fired.
But, I'm sure there have been other cases in Korea with high-end companies where some foreign worker making a high salary was fired and fought it.
If not - if all foreigners lose such cases in Korea, despite the law, it would indicate something more negative about Korea than it would the lowly nature of being a foriegner who dares to go to another country with an idea they should be treated as anything other than a "guest" who can be dismissed at will and treated however the "host" wants.... |
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YTMND
Joined: 16 Jan 2012
Location: You're the man now dog!!
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| Posted: Wed Aug 15, 2012 7:32 am Post subject: |
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| Quote: |
I would bet their have been foreigners in pretty much every nation the common expat ESLer in Korea comes from who have sued a native company for wrongful termination and won.
(And no, I'm not going to google to "prove" it.)
It won't be migrant farm workers. -- Like I wrote before, you aren't going to see too many people try for wrongful terminiation suits unless they make a lot of money and/or they work in a profession where getting another job is highly dependant on how you left your last one or if you have ever been fired from a job within the profession. |
You skipped over the premise of my question. You went from yes there are to no there aren't in areas we are most likely going to be fired.
1. We are not making a lot of money.
2. The other situation you gave an example where a university professor is suing. Most likely, their reputation isn't as damaged as their complaint makes it seem. When you sue you are going to try to collect on as much as you can. There is no indication they can't get another job, just that they felt they were wrongfully fired.
I was making the statement in context of an E2 visa holder at a hagwon, not university, and drawing parallels with jobs in the employee's home country.
If you found out that a foreigner was working in your country, but there was someone qualified to take the job who was also from your country which one should get the job? I think the clear answer is to hire within.
This is backed up by the following evidence:
"As more Americans lose their jobs, the U.S. government is actively discouraging the recruitment of foreign workers, from dude ranchers and fruit pickers to lifeguards and computer programmers."
and
"On Friday, the Labor Department will close a public-comment period for a proposal to suspend an agricultural guest-worker program, known as the H-2A." - http://www.ctrlegal.com/us-visas-and-immigration/us-deters-hiring-of-foreigners-as-joblessness-grows/
If you are going to state opinions and you want us to place credence on them, then you better prove what you set out to claim is the truth. Until then, it's just talk that gets in the way of the purpose of this discussion.
Korea is downsizing its foreign teachers and will be hiring more qualified Korean teachers. There is nothing to indicate a government helps foreigners out more or should. What you stated after making your "I would bet" comment shows you don't believe strongly about what you were "betting" on. It's too ludicrous to bank on.
Corrupt politicians might funnel money out of the country, but a foreigner is expendable. |
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iggyb
Joined: 29 Oct 2003
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| Posted: Wed Aug 15, 2012 8:57 am Post subject: |
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| Quote: |
| It could also be addressing Korean workers, not foreigners. Are there foreigners who can sue because there is no "just cause" in your home country? |
That sure reads as a broad statement going far beyond a common E2 situation in Korea...
You're beginning to jump all over the place.
Now you are citing articles about US government's effort to "encourage" the hiring of citizens by discouraging hiring of foreigners as "evidence" to "prove" prior statements about the lack of legal protection against unjust firings within the law and courts in the home nations of the average E2ers...
I wrote - I would bet - because I didn't want to enter into one of these hopeless and pointless "evidentiary" runarounds too common at Dave's.
Readers can read as they please based on their own experience and whatever if put up.
I feel no need to jump through your hoops. Readers can dismiss or accept whatever they want...
The OP said he was mistreated at his former school and was moved to another when he and a witness complained to managment. He wanted to know how to further his complaint.
I and most others said it was pointless and would do more harm than good.
This led to a discussion on wrongful terminiation rights within the Korean law and courts.
I agree with you that the OP would not have a case under the law. We also agree that the common E2 worker would be unlikely to gain much by trying to sue a school or hakwon for wrongful termination except under unusual circumstances - and under the typical unusual circumstances, the Labor Board can resolve issues without filing a lawsuit in court.
However, when you start to stretch this to ideas like Korea has no protection against unfair termination, or that Korean law courts would never support a foreigner over a Korean company in such a suit, or that courts in the home countries E2ers come from wouldn't do it either, or that foreigners shouldn't have such protections, I disagree. |
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CentralCali
Joined: 17 May 2007
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| Posted: Wed Aug 15, 2012 9:08 am Post subject: |
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| YTMND wrote: |
| 4. Manage the cows' health. = threaten to fire them if they take another sick day |
Or, in my case, = accused of "not even thinking about the job" for daring to schedule my "use it or lose it" renewal vacation and thus treated to disciplinary action.
| Quote: |
| 5. Sell your cattle to slaughterhouses, markets or other farmers, or slaughter them yourself and sell the beef to butchers. = tell the recruiter the teacher is not qualified and get another one when the teacher is not "producing" |
Or, in my case, = accused of "not even thinking about the job" and treated to disciplinary action.
Notice that the disciplinary action included the most petty stunts: re-assignment of assigned desk on a daily, sometimes twice daily, basis necessitating relocating my material; "advisory" conferences with supervising co-teacher, department head, vice-principal, or principal at the most inconvenient times, usually after the work day. That's just to name a couple. Does this constitute "bullying/harassment"? Of course it does! The issue is that it's not illegal and it's not actionable.
Korea knows the end result they want. The problem--and this is so incredibly obvious to anyone at all, IMHO, who has received other than a Korean school education--is that Korea does not have a clue as to how to get to that end result. What compounds the problem is that the persons involved in running the Korean education system simply refuse to accept that, just maybe, non-Koreans know a bit about how to get to that end result.
Of course, the real agenda is that the school got approval for a budget at my salary level and, by ticking me off so much that I walked out on them, the school gets to request another teacher, most likely a FOB, and thus the school pays less, getting a net positive monetary result. I won't even go into the total incompetence of the supervising co-teacher who's been a teacher herself less than a year and basically knew nothing whatsoever about the administrivia involved with a GET, not to mention she's simply a bad teacher.
The point is that there's no net benefit for the school, at least in the eyes of the administration, in ensuring the GET is treated legally and with respect. The problem with this attitude is that, in general, the students can and do pick up on it and also do not respect the GETs.
Last edited by CentralCali on Wed Aug 15, 2012 1:16 pm; edited 1 time in total |
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YTMND
Joined: 16 Jan 2012
Location: You're the man now dog!!
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| Posted: Wed Aug 15, 2012 12:12 pm Post subject: |
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That sure reads as a broad statement going far beyond a common E2 situation in Korea...
You're beginning to jump all over the place. |
No, I am using common sense based on what I have experienced. Meetings are mentioned in contracts. Not only were these meetings not focused on the foreigner, but there were separate meetings ONLY for native Korean teachers to attend.
Phone calls to parents were made by native Korean teachers, NOT required though of the native English speaking teachers.
One more to mention, hours were usually enforced on the Korean teacher where they had to do extra paperwork. Native English speaking teachers were allowed to leave after their last class. This isn't always the case with public schools, but this thread pertains to a hagwon dispute and 3 that I worked at gave a lot more freedom to the foreign teacher. The Korean teachers worked longer, got paid less, and they had to do extra work.
So, no, I don't think I am jumping all over the place when I assume Korean laws first pertain to Koreans. Then, depending on the status of the foreigner, their rights will be RELATIVELY determined. They will NOT be treated the exact same though.
Answer this question to yourself, if a Korean were to be interviewed for a job and it was revealed that the Korean left their previous job after 4 months (where they signed a 1 year contract, just like an E2 visa holder) would they be scrutinized more, less, or the same as a native English speaker who wanted to work for the average hagwon after also leaving their previous job in Korea after 4 months?
| Quote: |
| when you start to stretch this to ideas like Korea has no protection against unfair termination, or that Korean law courts would never support a foreigner over a Korean company in such a suit, or that courts in the home countries E2ers come from wouldn't do it either, or that foreigners shouldn't have such protections, I disagree. |
Do you disagree with this article? http://www.foxnews.com/politics/2012/08/15/illegal-immigrants-line-up-at-consulates-across-country-for-dream-er/
"Applicants are supposed to show they arrived in the U.S. before they were 16, and that they're enrolled in school or vocational training, or have a high school degree."
I am not stretching anything, I am looking at the evidence that proves foreigners are NOT treated the same as natives, and neither should they. It would be pointless having a nationality or even a passport if we could argue we should be treated the same. We don't get to vote, we can't run our own business as easily as we can back home, and we don't have the options that are available in our home country.
Perhaps you are hoping for a DREAM act for Korea which states native English speakers have the right to enter Korea and cut in line ahead of Koreans for jobs. So far that isn't going to happen. We have been lucky for a few years because of Lee Myung-bak's initiatives, "Moreover, the Lee Myung-bak government plans to use a pool of young Korean Americans for the promotion of after-school English education in public schools in rural areas with an aim to improve the quality of education.[52] Prior to assuming the presidency, Lee's transition team announced it would implement a nationwide English-immersion program in order to provide students with the language tools necessary to be successful in a highly globalized world. Under this program, all classes would have been taught in English by 2010." - http://en.wikipedia.org/wiki/Lee_Myung-bak
Now the party is over, we are at least in a downturn until a new leader emerges with dreams of their own. Koreans are not going to just give native English speakers more rights. They won't even treat Korean Americans or other gyopo the same as they do each other (I have even witnessed Koreans in Seoul look down on Koreans in the south because they are different and have darker skin color).
This is why I challenge anyone who makes claims to prove them. Cite sources like I have done and make a case.
If you are going to tell me that we have the same rights as a native Korean, you are not only going to be challenged on it but you will also need to support and back up your claims with solid evidence. This isn't your preference, this is objective criteria that we can easily look up.
So, where is the proof? |
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