Korean Job Discussion Forums

[vdowd]

Just a quick question from reviewing my new contract. It says I must give 60 days notice if I resign or stay until a new teacher is hired.

No where does it state the employers obligation for notice (4th year in and new, over-eager director without all new employess agree to please). It only states that they can fire you for reasons: ex: like smoking, drinking on site; breaking Korean laws; being late 3 times without approval - goodby if they so deem.

For those in the know, if they are not happy with you what is the legal obligation from an employer to give you notice or pay 30 days in lieu of that notice? (Private Elementary school under Korean Board of Education - not a hagwon)

Thanks in advance for your advice.

V

[yingwenlaoshi]

They have to give you 30 days notice. After six months, I believe.

I wouldn't worry too much about reasons for being fired being included in your contract.

Also, you're only required to give them 30 days notice. By law. Change that in your contract just to let them know that you know.

[vdowd]

Thanks for your response. The problem is also that there are over-eager newbie who have agreed to all their terms in the contract with no questions and that leaves me as the 6 year veteran of Korea and 3 year veteran at this as being the person who has raised their head and needs to be smacked down. Can you site me the source of these rules?

V

[yingwenlaoshi]

[ttompatz]

Korean labor standards act.

Article 32 (Advance Notice of Dismissal)

(1) An employer shall give an advance notice to a worker at least thirty days before dismissal(including dismissal for managerial reasons). If the notice is not given thirty days before the dismissal, normal wages for more than thirty days shall be paid to the worker, except in cases, prescribed by the Ordinance of the Ministry of Labor, where it is impossible to continue a business because of natural disaster, calamity, or other unavoidable causes, or where a worker has caused considerable difficulties to a business, or damage to properties on purpose. <Amended by Act No. 5885, Feb. 8, 1999>

Article 33 (Application for Remedy for Unfair Dismissal, etc.)
(1) If a worker is dismissed, laid off, suspended, transferred, or subject to other punitive actions or has his salary reduced by an employer without justifiable reason, the worker may request a remedy for it to the Labor Relations Commission.
(2) In relation to the procedures of the application for remedy and investigation, the provisions of Articles 82 to 86 of the Trade Union and Labor Relations Adjustment Act shall be applied mutatis mutandis, except for paragraph (5) of Article 85.

YOU are NOT obligated under law to give notice to quit. The matter of an employee leaving is strictly a contractual matter. However, IF you sign a contract agreeing to give notice it then you can be compelled to honor it.

.

[vdowd]

Thanks guys/gals

You gave me a good place to start with this. Any other adivce - keep it coming.

V

[garykasparov]

[MarionG]

"Law" trumping contract "provision."

I'm not a Korean attorney, and don't know very much about Korean law. But I do know the general principles of contract law, and there seems to be a misunderstanding on this board about what happens when a contract provision and the relative law are different.

If the law says something, such as a requirement that an employee receive 30 days notice of termination, and the contract says 15 days, or 0 days, or anything less than 30 days, then the law trumps the contract provision, which is null and void.

However, if the contract says 60 days notice, and the law says 30 days, then the employer has to give you 60 days notice. In other words, the 30 days is a minimum. If the contract is MORE protective for the employee, then the more protective clause will be enforced.

An employer cannot get rid of a right that the LAW gives to an employee by writing it out of, or not mentioning it, in a contract. For example, if a contract says "Employer does not participate in the national pension scheme," but the law would include the employee, then the employer is still bound to pay it. (This doesn't mean he wouldn't fight about it, mind you, just that he would eventually lose the fight)

Think of it this way...if minimum wage is $6.00 an hour, and you are being paid $10.00 an hour on a contract, and you have a dispute, no one will buy an argument from your employer that he only has to pay $6.00 because that's Korean law. It's the MINIMUM wage...just as 30 days notice of termination is the MINIMUM notice from a Korean employer.

[MarionG]

As to the clause that says you must stay until a new teacher is found...try and put a time limit on that, i.e. up to 30 days beyond the contract, maximum, or something like that...in theory a requirement that you stay until a new teacher is found could keep you there for years...