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TrouserX
Joined: 11 Oct 2004
Location: CityX, ROK
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 Posted: Mon Oct 25, 2004 1:33 am Post subject: Are these contract clauses wack? |
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I'm in the process of looking over contracts from a few schools, and I'm starting to notice odd things popping up here and there... What do y'all make of these?
> G. If the instructor seeks release from the contract for personal reasons, the instructor will report to the institute and will receive 70% of the monthly salary from that time until a replacement instructor is placed (approx 4weeks) and the instructor agrees to work until the new instructor arrives.
Is this 70% thing legal? Or did they just make it up?
> H. If the instructor fails to conduct him/herself in a professional manner, resulting in damage to the image of the institute, or fails to follow the director's orders, the institute has the right to terminate the contract due to internal problems, the institute will provide two weeks notice. And, if the institute violates the contract, the instructor also has the right to terminate the contract, but two weeks notice must be provided as well.
Aside from the wording being kind of tortuous and vague (it seems "internal problems" could mean just about anything, including business and admin issues that have nothing to do with the teacher) what's the deal with the two weeks' notice? Isn't it supposed to be a month's notice or a month's severance upfront?
> C. The instructor should be in good health and will submit proof of his/her health condition check up before or upon arrival.
I've seen a few contracts, but this the first I've seen of a mandatory medical check-up. Again, is this kosher?
My apologies if these clauses are totally fine. But my BS detector is twitching, and I thought I'd mention it.
TrouserX |
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kprrok
Joined: 06 Apr 2004
Location: KC
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| Posted: Mon Oct 25, 2004 1:41 am Post subject: Re: Are these contract clauses wack? |
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| TrouserX wrote: |
> G. If the instructor seeks release from the contract for personal reasons, the instructor will report to the institute and will receive 70% of the monthly salary from that time until a replacement instructor is placed (approx 4weeks) and the instructor agrees to work until the new instructor arrives.
Is this 70% thing legal? Or did they just make it up? |
I dont think it's illegal, just kinda funny. I'd actually be very surprised if it were illegal. Look at it this way, it's basically just your salary. Any salary is negotiable so long as it's above the legal minimum wage (is there one in Korea?) By agreeing to this clause, all you are agreeing to is your wage in case something happens.
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> H. If the instructor fails to conduct him/herself in a professional manner, resulting in damage to the image of the institute, or fails to follow the director's orders, the institute has the right to terminate the contract due to internal problems, the institute will provide two weeks notice. And, if the institute violates the contract, the instructor also has the right to terminate the contract, but two weeks notice must be provided as well.
Aside from the wording being kind of tortuous and vague (it seems "internal problems" could mean just about anything, including business and admin issues that have nothing to do with the teacher) what's the deal with the two weeks' notice? Isn't it supposed to be a month's notice or a month's severance upfront? |
This is the one I don't really like. Basically what this clause is used for is that if you make the boss mad by not doing something they want done, they can claim you've damaged the reputation of the school and you're gone. I'm pretty sure the legal standard on this is the school must give you one-month notice if they are terminating your contract for non-valid reasons. If you sign this, you've made just about anything to be valid.
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> C. The instructor should be in good health and will submit proof of his/her health condition check up before or upon arrival.
I've seen a few contracts, but this the first I've seen of a mandatory medical check-up. Again, is this kosher? |
I know for EPIK you have to get a medical check. No huge problem. The ROK is big on foreigners with AIDS, so if you've got it, you won't be allowed to stay. If you catch it here, you wont' be allowed to stay. I'm also pretty sure that the National Insurance doesn't cover pre-existing conditions, so that may be what's at work here.
Good luck.
KPRROK |
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Son Deureo!
Joined: 30 Apr 2003
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| Posted: Mon Oct 25, 2004 1:44 am Post subject: |
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G and C sound legal. I'm pretty sure H isn't. 30 days notice or 30 days pay is the law, barring exceptional circumstances.
I definitely wouldn't sign because of G, even though it's legal, because it's the kind of clause a hogwon puts in when they have problems keeping teachers. And there usually seems to be a good reason for that. IMHO, I don't understand why hogwons bother putting clauses like that in, because it's tantamount to advertising to their new teachers that the only way to get out is by pulling a runner. |
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mindmetoo
Joined: 02 Feb 2004
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| Posted: Mon Oct 25, 2004 3:08 am Post subject: |
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The health bit might be an ass covering move. People represent themselves as healthy but show up and need every other day off because of some horrible medical condition.
I suspect a lot of contracts are historical documents that reflect every freakazoid waegook teacher they've ever had. "Oh that's something new... we need to add that to the next foreign teacher's contract..." |
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the eye
Joined: 29 Jan 2004
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| Posted: Mon Oct 25, 2004 5:45 am Post subject: |
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the above are wrong.
all the clauses you included are not legal under employment law.
the employer must give 30 days notice of dismissal, with full pay.
and the employee is required to give 30 days notice as well, still with full pay.
there is no law that states you must have a health exam.
i wonder what else is on that sucker.
http://www.efl-law.com/quest_cont.html |
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Gord
Joined: 25 Feb 2003
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| Posted: Mon Oct 25, 2004 6:19 am Post subject: |
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| the eye wrote: |
the above are wrong.
all the clauses you included are not legal under employment law. |
Can you please cite the passages of the Labour Standards Act (or any other law in Korea) that support this claim? I'm fairly certain that they aren't there and that everything mentioned is legal.
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the employer must give 30 days notice of dismissal, with full pay.
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Only if they have worked for six months already (section 35 -3a of the Labor Standards Act), and this does not apply if the employer has caused "considerable difficulties to the business" (section 32-1)
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| there is no law that states you must have a health exam. |
Lovely. The offer never stated it was a lawful requirement but rather a condition of the job offer. |
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the eye
Joined: 29 Jan 2004
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| Posted: Mon Oct 25, 2004 6:55 am Post subject: |
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| Gord wrote: |
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the employer must give 30 days notice of dismissal, with full pay.
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Only if they have worked for six months already (section 35 -3a of the Labor Standards Act), and this does not apply if the employer has caused "considerable difficulties to the business" (section 32-1)
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| there is no law that states you must have a health exam. |
Lovely. The offer never stated it was a lawful requirement but rather a condition of the job offer. |
wow, Gord....what a civil reply.
true about the 6 month thing... i should have included that but i was thinking about the contract period at length.
and, according to the MOLAB website, the employer has no legal recourse to withhold pay prior to dismissal.
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B. Restrictions on Dismissals
Employers cannot dismiss employees without justifiable causes. If dismissed without justifiable causes, an employee can apply for redress to a Labor Relations Commission. Employers may be subject to punishment for any unjustifiable dismissal.
If an employer wants to dismiss his/her workers for managerial reasons, the employer should meet strict conditions and procedures. First of all, the employer should have urgent managerial reasons, make every effort to avoid such dismissal, select those to be dismissed by rational and fair standards, and sincerely consult with the trade union or workers' representatives in advance.
On the other hand, even when an employer dismisses his/her workers for justifiable reasons, the employer must notify the workers concerned of dismissal at least 30 days in advance. Otherwise, the employer should pay the workers 30 days or more of ordinary wages.
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http://www.molab.go.kr:8787/English/ladm/sub_3.jsp
employers have abused the 'justifiable means' for termination provision in the law quite frequently. what determines 'justifiable means' does not necessarily include 'failing to follow orders"(as noted in the contract)
as for the health exam clause, the OP asked if it was legal under labour law...not that the contract stated it was lawful. |
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Gord
Joined: 25 Feb 2003
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| Posted: Mon Oct 25, 2004 7:34 am Post subject: |
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| the eye wrote: |
| and the employer has no legal recourse to withhold pay prior to dismissal. |
Only if it was a unilateral action. By agreeing to it though then it becomes a binding agreement between two parties.
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| employers have abused the 'justifiable means' for termination provision in the law quite frequently. what determines 'justifiable means' does not necessarily include 'failing to follow orders"(as noted in the contract) |
How can one possibly conclude that "failing to follow orders" does not cross the imaginary line? I have fired people before for "failing to follow orders". And I fully expect to be fired for failing to follow orders.
Under the laws laid down, a minor mistake with minor consequences should not conclude with employment termination. Does this happen? Perhaps in some instances. Though if an employee wishes to contest a firing under the claims that they should not have been fired as the incident and results were quite minor, they are free to appeal such a decision to the Labor Board. |
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the eye
Joined: 29 Jan 2004
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| Posted: Mon Oct 25, 2004 8:09 am Post subject: |
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| Gord wrote: |
| the eye wrote: |
| and the employer has no legal recourse to withhold pay prior to dismissal. |
Only if it was a unilateral action. By agreeing to it though then it becomes a binding agreement between two parties. |
i underwent labour board proceedings, and initiated a lawsuit last May for other issues regarding my former employer.
in my case, labour law trumped the binding agreement between two parties.
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| employers have abused the 'justifiable means' for termination provision in the law quite frequently. what determines 'justifiable means' does not necessarily include 'failing to follow orders"(as noted in the contract) |
How can one possibly conclude that "failing to follow orders" does not cross the imaginary line? I have fired people before for "failing to follow orders". And I fully expect to be fired for failing to follow orders. |
I didn't say that it was entirely negligible. only that such an excuse is not justifiable for immediate termination or less than 30 days notice considering the employee has worked more than 6 months.
especially on a first offence.
the contract as it is, says otherwise.
i think you are reading too much into what i said.
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Under the laws laid down, a minor mistake with minor consequences should not conclude with employment termination. Does this happen? Perhaps in some instances. Though if an employee wishes to contest a firing under the claims that they should not have been fired as the incident and results were quite minor, they are free to appeal such a decision to the Labor Board. |
agreed.
but as the contract states, a minor mistake could result in 2weeks notice for termination. after the 6month mark, this is unlawful according to labor law.
that is what was asked by the OP. |
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Grotto
Joined: 21 Mar 2004
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| Posted: Mon Oct 25, 2004 2:20 pm Post subject: |
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| No he is just doing what he usually does which is interpret pretty much anything in the labour laws to the full benefit of the employer without regards to the employee. |
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