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Gamja-tang
Joined: 23 Oct 2011
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 Posted: Thu Dec 01, 2011 11:32 pm Post subject: How much severance should I get? |
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Okay, so I'm currently on my third contract with my school. The topic of my severance was brought up and I asked how much I would get for my first two years. I thought it would be 2.7 (my salary for the second year) times two for the two years I completed. However, my school says it would be 2.6 (my first year salary) plus 2.7. I pointed out the labor laws about the average of the last 3 months salary, but they remain adamant that they are correct and that it is based on the yearly contract.
So, who is right? |
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ttompatz
Joined: 05 Sep 2005
Location: Kwangju, South Korea
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| Posted: Thu Dec 01, 2011 11:44 pm Post subject: Re: How much severance should I get? |
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| Gamja-tang wrote: |
Okay, so I'm currently on my third contract with my school. The topic of my severance was brought up and I asked how much I would get for my first two years. I thought it would be 2.7 (my salary for the second year) times two for the two years I completed. However, my school says it would be 2.6 (my first year salary) plus 2.7. I pointed out the labor laws about the average of the last 3 months salary, but they remain adamant that they are correct and that it is based on the yearly contract.
So, who is right? |
http://www.moel.go.kr/english/topic/laborlaw_view.jsp?idx=254&tab=Standards
CHAPTER I
General Provisions
Article 2 (Definition)
5. The term �wages� in this Act means wages, salaries and any other money and valuable goods an employer pays to a worker for his/her work, regardless of how such payments are termed.
6. The term �average wages� in this Act means the amount calculated by dividing the total amount of wages paid to the relevant worker during three calendar months prior to the date on which the event necessitating such calculation occurred by the total number of calendar days during those three calendar months. This shall also apply mutatis mutandis to less than three months of employment.
[Labor Standards] Employee Retirement Benefit Security Act
Article 8 (Establishment of Retirement Pay System)
(1) An employer who intends to set up a retirement pay system shall set up the system that makes it possible to pay a retiring worker 30 days or more of average wages for each year of his/her consecutive service as retirement pay.
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Gamja-tang
Joined: 23 Oct 2011
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| Posted: Fri Dec 02, 2011 12:30 am Post subject: |
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Hey ttompatz, thanks for the reply.
I showed them the part of the labor law that you quoted, but they remained pretty adamant that they are correct. Now I haven't had a conversation with the district financial person, but they backed up my school even after I showed them the labor laws. It seems to me that we differ on what the event necessitating such calculations are. To me, it seems like they are saying the completion of my contract is the event that necessitates the calculations, whereas I say it is when I leave. So who is correct? |
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koreatimes
Joined: 07 Jun 2011
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| Posted: Fri Dec 02, 2011 1:03 am Post subject: |
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If you left after 1 year, how much would you have expected to receive? 2.6 right? So, if you work a second year for 2.7, then getting 5.4 instead of 5.3 would mean .1 extra.
How are you justifying this? I don't see how you can fight for an extra 100,000 in this case. |
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jrwhite82
Joined: 22 May 2010
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| Posted: Fri Dec 02, 2011 2:06 am Post subject: |
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It is my understanding that if you are maintaining continuous employment at the school without cashing out your severance, than you are to be paid your severance on the basis of your last 3 months of employment. So if you are making 2.7 now in your third contract, you should get 2.7x3 (if you complete this contract). If you quit 3 months into your 3rd contract, you would get 2.7x2.25.
Koreatimes - You and the employer seem to be forgetting to apply Article 8.1 about consecutive service. It doesn't matter "if" he left after one year, because he didn't leave. It only matters what he actually did. This applies to all Korean employees as well. For example, a guy works at LG for 3 years. His first two years he makes 5.0mil. The third year he makes 6.0mil. Then he decides to retire. He would get 18 million not 16 million.
The questions is, is 100,000W worth the headache of fighting for it and potentially ruining your chances of a good recommendation letter/reference by because it spoils the releationship? |
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Wildbore
Joined: 17 Jun 2009
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| Posted: Fri Dec 02, 2011 2:19 am Post subject: |
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Doesn't the law on severence payments only apply to businesses with 5 or more full-time employees.
If the business has less, everything that Tompatz posted doesn't apply and the wording of the severence article in the contracts is what matters. |
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koreatimes
Joined: 07 Jun 2011
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| Posted: Fri Dec 02, 2011 3:00 am Post subject: |
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| You and the employer seem to be forgetting to apply Article 8.1 about consecutive service. It doesn't matter "if" he left after one year, because he didn't leave. |
I didn't forget it, I just wanted to throw out this hypothetical and you bit. So, here we go:
I don't know the actual figures, so I'll make some assumptions. Feel free to correct me so we can get a more accurate idea of the point I am making.
Let's say you are nearing the end of your master's degree, but you don't have it yet. You teach for a school with a bachelor's and this school agrees to pay 2.1 for a teacher with a bachelor's and 2.4 for a teacher with a master's. You work the year for 2.1, and then you re-sign for a second year. However, during this second year, you now have your master's degree (let's say after 1.5 years of working for the school).
If the original poster is entitled to the 100,000 in dispute, then would the teacher in the example I brought up be also entitled to 4.8 instead of 4.5? If not, why would the original poster be entitled to 5.4 but the teacher in my example not be entitled to 4.8?
If the teacher would be entitled to the 4.8, then I simply don't agree with the premise. The employer is less likely going to re-hire teachers then if there is a law allowing teachers to get a boost in their overall severance.
In this case jrwhite82, I do clearly see it as a possible legal loophole to the benefit of the teacher (even though I still disagree with it as outlined in my example above).
So, this is good news for the original poster. I found a site which would support their case (I believe) at http://www.englishjobskorea.com/country_severancepay.shtml
They have, "If you are signing 18 months employment contract, then the severance pay will be 1.5 month�s salary."
So, it seems like the employer screwed up and should have had the original poster sign a 2 year contract at 2.65 if they only wanted to pay out 5.3 after 2 years (or make the teacher work less in the last 3 months  ). It's just a matter of time before an employer will see this, but in any case is it worth fighting?
If you go to labor board, how much time and effort will be there to collect on 100,000? |
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jrwhite82
Joined: 22 May 2010
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| Posted: Fri Dec 02, 2011 7:36 am Post subject: |
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| koreatimes wrote: |
| Quote: |
| You and the employer seem to be forgetting to apply Article 8.1 about consecutive service. It doesn't matter "if" he left after one year, because he didn't leave. |
I didn't forget it, I just wanted to throw out this hypothetical and you bit. |
So you are admitting you were trolling? Calm down, just kidding.
| koreatimes wrote: |
So, here we go:
I don't know the actual figures, so I'll make some assumptions. Feel free to correct me so we can get a more accurate idea of the point I am making.
Let's say you are nearing the end of your master's degree, but you don't have it yet. You teach for a school with a bachelor's and this school agrees to pay 2.1 for a teacher with a bachelor's and 2.4 for a teacher with a master's. You work the year for 2.1, and then you re-sign for a second year. However, during this second year, you now have your master's degree (let's say after 1.5 years of working for the school).
If the original poster is entitled to the 100,000 in dispute, then would the teacher in the example I brought up be also entitled to 4.8 instead of 4.5? If not, why would the original poster be entitled to 5.4 but the teacher in my example not be entitled to 4.8?
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Yes, your hypothetical teacher would be entitled to the higher severance. And for the sake of argument, let's follow the public school pay scale (100,000 for a Masters while under contract), because they are pretty much the only contract that actually attempts to address this exact scenario. This actually happens all the time. In both ESL teaching and in other Korean companies. For example, check out the GEPIK contract:
| GEPIK Contract wrote: |
9. If the Employee obtains further degree or certificate during the contract term,
he/she will be promoted to the next applicable employment category (with
corresponding raise in salary) in the month following once the necessary document
has been submitted. However, promotions shall be limited to one pay category
increase per contract year(i.e. Category 3 to 2, Category 2 to 2+; not Category 2
to 1).
and
6. After the completion of a one-year contract, the Employer shall pay the
Employee an extra thirty (30) days' average wage as a severance pay for the
Employee's continuous employment of one (1) year.
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So as you can see, they are in fact prepared to pay a higher amount. The difference here is that the GEPIK contract does not state the average of the final three months. But they are required to do that as stated in the LSA (Which Ttompatz posted above), which takes precedent over the GEPIK contract.
Again, this is all contingent on the employee willing to burn their bridge over a measly 100,000W.
But, if you look at the EPIK contract, it states that there are no increases allowed during the contract.
| EPIK Contract wrote: |
| ③ Any new qualifications obtained after the beginning of the Term of Employment will not subsequently change the Pay Level during the Term of Employment; the Pay Level will remain that agreed to at the beginning of the Term of Employment. |
So that eliminates this discussion entirely.
| koreatimes wrote: |
In this case jrwhite82, I do clearly see it as a possible legal loophole to the benefit of the teacher (even though I still disagree with it as outlined in my example above).
So, this is good news for the original poster. I found a site which would support their case (I believe) at http://www.englishjobskorea.com/country_severancepay.shtml
They have, "If you are signing 18 months employment contract, then the severance pay will be 1.5 month�s salary."
So, it seems like the employer screwed up and should have had the original poster sign a 2 year contract at 2.65 if they only wanted to pay out 5.3 after 2 years (or make the teacher work less in the last 3 months ). It's just a matter of time before an employer will see this, but in any case is it worth fighting?
If you go to labor board, how much time and effort will be there to collect on 100,000? |
I'm not quite sure what you were referring to as a loophole. But this clause in the LSA is anything but. In fact, it is specifically designed as further protection for retirees.
I agree with your question about whether this would be worth it to fight it. |
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koreatimes
Joined: 07 Jun 2011
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| Posted: Fri Dec 02, 2011 9:25 am Post subject: |
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| I am surprised you don't see the loophole, because you did all the work to show the various contract terms. The EPIK one plugs up the loophole. |
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jrwhite82
Joined: 22 May 2010
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| Posted: Fri Dec 02, 2011 8:14 pm Post subject: |
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| koreatimes wrote: |
| I am surprised you don't see the loophole, because you did all the work to show the various contract terms. The EPIK one plugs up the loophole. |
For there to be a loophole, some kind of ambiguity must be present that can be exploited. In both the contracts and the LSA the policy and law (quoted above) is clear. |
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jrwhite82
Joined: 22 May 2010
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| Posted: Fri Dec 02, 2011 8:14 pm Post subject: |
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| koreatimes wrote: |
| I am surprised you don't see the loophole, because you did all the work to show the various contract terms. The EPIK one plugs up the loophole. |
For there to be a loophole, some kind of ambiguity must be present that can be exploited. In both the contracts and the LSA the policy and law (quoted above) is clear. |
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koreatimes
Joined: 07 Jun 2011
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| Posted: Fri Dec 02, 2011 8:38 pm Post subject: |
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| jrwhite82 wrote: |
| koreatimes wrote: |
| I am surprised you don't see the loophole, because you did all the work to show the various contract terms. The EPIK one plugs up the loophole. |
For there to be a loophole, some kind of ambiguity must be present that can be exploited. In both the contracts and the LSA the policy and law (quoted above) is clear. |
Again, your Achilles heel of only looking at one meaning or use of a word prevents you from understanding the context of that same word when applying another definition of it.
"a means of escape; especially : an ambiguity or omission in the text through which the intent of a statute, contract, or obligation may be evaded "
Especially doesn't mean 100%.
Aside from that, if one party reads it one way and another party reads it another way, I would say there definitely could be ambiguity. Just because you and I may disagree, doesn't mean we are 100% correct. |
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jrwhite82
Joined: 22 May 2010
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| Posted: Fri Dec 02, 2011 8:47 pm Post subject: |
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| Ok. I will lump your understanding of severance pay with your understanding of Monday night quarterback. Just make it up as you go along. |
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northway
Joined: 05 Jul 2010
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| Posted: Fri Dec 02, 2011 8:50 pm Post subject: |
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| koreatimes wrote: |
If you left after 1 year, how much would you have expected to receive? 2.6 right? So, if you work a second year for 2.7, then getting 5.4 instead of 5.3 would mean .1 extra.
How are you justifying this? I don't see how you can fight for an extra 100,000 in this case. |
The law is the law, the OP doesn't have to justify it. |
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Gamja-tang
Joined: 23 Oct 2011
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| Posted: Fri Dec 02, 2011 11:55 pm Post subject: |
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| jrwhite82 wrote: |
| The questions is, is 100,000W worth the headache of fighting for it and potentially ruining your chances of a good recommendation letter/reference by because it spoils the releationship? |
Yeah, I agree that 100,000W isn't worth burning some bridges over. However, if I leave now it wouldn't be 100,000W, but 300,000. I make 2.8 a month now. Would I burn some bridges over 300,000W? Maybe, it isn't a lot of money, but it isn't exactly pocket change either. I guess that depends on how this year goes. My first two years were great, but this year I got co-teacher who I didn't get along with in the beginning, but things seem to be alright now. Also got a new principal and vice principal and all the old teachers are being transferred at the end of the year because they've been here for 5 years. So next years going to be a flip of the coin. Things already aren't looking to great as they want to give me 2 separate 1 week vacations instead of one 2 week vacation. I still get my vacation, it just kind of sucks. |
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