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Troglodyte
Joined: 06 Dec 2009
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 Posted: Sun Apr 12, 2015 3:42 am Post subject: |
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| Sector7G wrote: |
| Troglodyte wrote: |
| Where's the quid pro quo for asking employees to give 30 days notice that most places ask for? |
Wouldn't it be the Dismissal Notice that is also in the contract?
The Employer should give at least 30 days notice of dismissal. Otherwise the Employer must pay the ordinary wages for at least thirty days.
http://www.efl-law.com/contracts.php |
No because the employer is obligated to do that already. The fact that it's in the contract is meaningless because they would have to do this in any case. It's like the severance pay. It doesn't matter if it's in the contract or not. Some schools will put in a clause that says that you won't have to work more than 40 hours a week. Again, it doesn't matter if it's there or not. Schools put in these things because they make it look like the school is offering you some sort of benefit. Foreigners who aren't familiar with Korean law don't realize that these are legal obligations which the employer is bound by.
Quid pro quo would be something like this.
School will pay you 200,000 Won bonus if the teacher gives 30 days notice of termination of the contract.
- school: give 200,000 Won
- teacher: give 30 days notice
If the teacher doesn't give notice (which is always an options) then they don' get the bonus. The school still can't take you to court over it and they still can't dock your pay over it.
Likewise, the nature of agreement cannot involve a penalty for the employee. So if the above clauses also stated something like "School will pay you 200,000 Won bonus if the teacher gives 30 days notice of termination of the contract. BUT if the teacher does not give notice then he will forfeit 100,000 Won from his last salary." then that extra part would be invalid (but the first would remain valid since it does not contradict the law). Also, once a bonus has been given, even if it is given in advance (e.g. airfare or settling in bonus) it cannot be deducted from salary without approval of the court.
Korean labor law is designed (in theory at least) to protect the employee. It is also very much against situations which would lead to any form of indentured servitude (e.g. you have to work to pay off your debt). |
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Sector7G
Joined: 24 May 2008
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| Posted: Sun Apr 12, 2015 5:00 am Post subject: |
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| Troglodyte wrote: |
| BUT, even if someone did leave without advanced notice, it's still not breaking the contract because that part of the contract was null from the get-go. |
I am not sure where you are getting that from. Is that something unique to Korean contract law? Because courts in both the UK and the US say requiring notice as one of the terms is perfectly legal.
http://www.jobsite.co.uk/worklife/notice-periods-questions-answered-10523/
"If you wish to leave before the end of your contractual notice, in practical terms, your employer does not have a great deal of options. Your employer cannot force you to work, even though you may be in breach of contract. In certain circumstances, your old employer may, however, be able to obtain an injunction to stop you working for your new employer during the notice period, but they would have to show that the new employer is a direct competitor and that there was a legitimate need to protect your old employer’s interests. Such claims are likely to be brought against senior executives only.
Your old employer may also bring a claim against you for the additional costs arising from your breach of contract (such as the cost of replacement staff for the balance of the notice period.)"
http://career-advice.monster.co.uk/in-the-workplace/leaving-a-job/what-can-i-do-about-my-long-notice-period/article.aspx
"Any notice period will be determined either by law or by the terms of the contract with your employer, but it can be varied in some circumstances. In most cases where you want to leave and the notice period is a problem; talking through the situation with your employer is the very first step. There may be a way forward to benefit both parties."
| Troglodyte wrote: |
| You can't sign away your right to leave the job whenever you like, even at a moments notice. |
Again, no one is arguing that. That would be slavery. We are talking about compensation and expenses and benefits and what is owed and/or forfeited by breaching the contract. We could also be talking about whether or not one is allowed to work for the competition before the notice time is up.
| Troglodyte wrote: |
Breaking a contract is a legal matter where you can be taken to court over it. |
Exactly, and unless there is something unique to Korean contract law, either party can certainly do that in this case. Taking some one to court and winning is a different story, as we all know. Taking some one to court and winning and collecting is even another story. This works both ways, as an employer would have a hard time collecting from a teacher who has left the country.
At any rate, we both seem to agree that in the case of not giving notice, the practical repercussions would be the same - loss of bonus and of airfare. |
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nick2124
Joined: 11 Jan 2010
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| Posted: Tue Apr 14, 2015 5:26 am Post subject: |
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Thanks for all the replies.
I'm just going to go there on a tourist visa then change to an E2 once I find employment.
Just a quick question:
What docs do I need? I already have my background check (came through yesterday) and uni degree. I'll have them apostilled too. Should I also get a
full check up from my GP ?
Anything else for that matter?
Cheers,
Nick |
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Sector7G
Joined: 24 May 2008
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| Posted: Tue Apr 14, 2015 9:03 am Post subject: |
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| nick2124 wrote: |
I'm just going to go there on a tourist visa then change to an E2 once I find employment.
Cheers,
Nick |
Have you ever had an E2 visa before? Because it used to be you could only get your first one from your home country only - meaning you can't get it by doing a visa run to Japan or other nearby countries. Maybe that rule has changed, or maybe you know about it already and don't care. If not, I would check first. |
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nick2124
Joined: 11 Jan 2010
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| Posted: Tue Apr 14, 2015 8:29 pm Post subject: |
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Damn.
I just called my local Korean embassy (in Australia) and was advised I need to organize my visa from outside Korea. |
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Troglodyte
Joined: 06 Dec 2009
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| Posted: Fri Apr 17, 2015 3:48 am Post subject: |
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| Sector7G wrote: |
| Troglodyte wrote: |
| BUT, even if someone did leave without advanced notice, it's still not breaking the contract because that part of the contract was null from the get-go. |
I am not sure where you are getting that from. Is that something unique to Korean contract law? Because courts in both the UK and the US say requiring notice as one of the terms is perfectly legal.
http://www.jobsite.co.uk/worklife/notice-periods-questions-answered-10523/
"If you wish to leave before the end of your contractual notice, in practical terms, your employer does not have a great deal of options. Your employer cannot force you to work, even though you may be in breach of contract. In certain circumstances, your old employer may, however, be able to obtain an injunction to stop you working for your new employer during the notice period, but they would have to show that the new employer is a direct competitor and that there was a legitimate need to protect your old employer’s interests. Such claims are likely to be brought against senior executives only.
Your old employer may also bring a claim against you for the additional costs arising from your breach of contract (such as the cost of replacement staff for the balance of the notice period.)"
http://career-advice.monster.co.uk/in-the-workplace/leaving-a-job/what-can-i-do-about-my-long-notice-period/article.aspx
"Any notice period will be determined either by law or by the terms of the contract with your employer, but it can be varied in some circumstances. In most cases where you want to leave and the notice period is a problem; talking through the situation with your employer is the very first step. There may be a way forward to benefit both parties."
| Troglodyte wrote: |
| You can't sign away your right to leave the job whenever you like, even at a moments notice. |
Again, no one is arguing that. That would be slavery. We are talking about compensation and expenses and benefits and what is owed and/or forfeited by breaching the contract. We could also be talking about whether or not one is allowed to work for the competition before the notice time is up.
| Troglodyte wrote: |
Breaking a contract is a legal matter where you can be taken to court over it. |
Exactly, and unless there is something unique to Korean contract law, either party can certainly do that in this case. Taking some one to court and winning is a different story, as we all know. Taking some one to court and winning and collecting is even another story. This works both ways, as an employer would have a hard time collecting from a teacher who has left the country.
At any rate, we both seem to agree that in the case of not giving notice, the practical repercussions would be the same - loss of bonus and of airfare. |
Korea has VERY strong pro-employee laws.
Of course there's nothing illegal about putting a clause into a contract that says that you need to give notice. It's simply not enforceable in the vast majority of cases because no court would uphold any penalty created by the employer. Occasionally hogwon owners will try to slip in a penalty clause (which is also contrary to labor law and therefore null). In general, an employer would have to prove significant losses due to non-performance. An employer though is supposed to have an alternative plan for when the employee can't do the contacted job at some point (e.g. illness). The employer would have to demonstrate that he DID have a contingency plan for days when the employee could not perform the contract but an additional loss (a significant one, none-the-less) still resulted. This would be next to impossible in the case of a hogwon. There are dozens of agencies that provide temp teachers, even same day depending on the location. But the employer has to have a plan in place to begin with. There are also agencies that provide teachers. Nevertheless, to win a law suit of this sort, the loss would have to be significant. Maybe if the conductor of a national orchestra decided not to show up on the night of a huge concert. Maybe a researcher decided to quit at the moment just before a major point in a project that had huge money invested in it. In all honesty, hogwon teachers are not much higher in the scheme of things than the college kid working the night shift at a 24 hr convenience store. No court would even entertain the idea that teacher Bob is irreplaceable and key to a billion dollar endeavor. Mrs. Kim's hogwon could go belly up tomorrow and the courts wouldn't care one bit.
Have a look through the Labor Standards Act and associated documents. You can find copies online, particularly from the MOEL website. It's not the be-all-end-all of labor law but it's the starting point. Some of the key things to look for are related to the right of people to NOT work (or rather to quit if they want) and the prohibition against penalties for employees. Once you have a feel for what kinds of things are actually written, then ask a lawyer about case studies, which truly illustrate the opinions of the court. |
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Sector7G
Joined: 24 May 2008
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| Posted: Fri Apr 17, 2015 5:17 am Post subject: |
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| Troglodyte wrote: |
Have a look through the Labor Standards Act and associated documents. You can find copies online, particularly from the MOEL website. It's not the be-all-end-all of labor law but it's the starting point. Some of the key things to look for are related to the right of people to NOT work (or rather to quit if they want) and the prohibition against penalties for employees. Once you have a feel for what kinds of things are actually written, then ask a lawyer about case studies, which truly illustrate the opinions of the court. |
Uh, yeah, ok, I'll get right on it.  |
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