Korean Job Discussion Forums

[blackjack]

Bit of a long story but I am just about to start my 11th month of my contract. About a month ago i talked with my boss about signing on for another 10 months, it was a friday i said i agree but i had to talk with people over the weekend.

The school said that we would be having our winter vacation between christmas and new year, which would give me my yearly vacation quota. However when i went in i was told that the vacation would not be till after sol, which means that i would not be getting my vacation quota in my year. After pointing this out they said there is nothing they can do. In response i said in that case i can not sign on for the extra 10 months and i will be leaving on the 12 of Jan (end of my contract). They in turn called me dishonest blah blah blah.

For the past few weeks of have been trying to get my boss to pay me for the remaining four days of my vacation. no luck.

On thursday i tried again and my boss said "you agreed to sign on for another 10 months did not and saying sorry is not enough, that is why i will not pay you for your unused vacation".

I responded "in that case i will be forced to go to the labour board". she said fine.

then on friday the head korean teacher (the bosses sister in law) talked to my fellow foreign teacher and said i don't think blackjack will be working here my longer, i think he is getting fired. he told me and i talked to her, she said that the boss is writting up a "notice" for me and she will translate it over the weekend.

So what can i do? I need my severance pay for my masters. who do i talk to? I know i am jumping the gun a bit i should wait till monday. But will i need to consult a lawyer? If my boss cancels my visa i only have 15 days to get out of the country right?

A bit long i know but please any help would be great (esp useful advice i don't really want to burn down the school or stage a sit in )

[Squid]

Hang fire until they officially inform you of their decision. Either way you're in a reasonable position given that you've only a month left on your current E2, which will allow you to start work somewhere else soon... in the meantime filing a claim for your losses of pay at the labor board office nearest your employer's home address.
You'll need to make sure you have their full name and home address to claim, but looking at your circumstances it seems they're trying it on and don't expect you to stick around... I would urge you to do so, and stick it to them... it'll be worth it. The Labor board office will slam dunk in your favor and I doubt your boss will even show to contest it.

Best of luck.

[alabamaman]

Article 30 (Restriction on Dismissal, etc.)

(1) An employer shall not dismiss, lay off, suspend, transfer a worker, or reduce wages, or take other punitive measures against a worker without justifiable reason.

(2) An employer shall not dismiss any worker during a period of temporary interruption of work for medical treatment of an occupational injury or disease and within 30 days thereafter; nor shall any female worker before and after childbirth be dismissed during a period of temporary interruption of work as provided herein and within 30 days thereafter; however, if an employer has paid the lump sum compensation due under Article 87 hereof or is not able to continue his business, this shall not apply.

Article 31 (Restriction on Dismissal for Managerial Reasons)

(1) If an employer wants to dismiss a worker for managerial reasons, there shall be urgent managerial needs. In such cases as transfer, acquisition and merger of business which are aimed to avoid financial difficulties, it shall be deemed that there is an urgent managerial need.

(2) In the case of paragraph (1), an employer shall make every effort to avoid dismissal of workers and shall select workers to be dismissed by establishing rational and fair standards of dismissal. In such cases, there shall be no discrimination on the ground of gender.

(3) With regard to the possible methods for avoiding dismissal and the criteria for dismissal as referred to in paragraph (2), an employer shall give a notice 60 days prior to dismissal day to a trade union which is formed by the consent of the majority of all workers in the business or workplace concerned(or to a person representing the majority of all workers if such trade union does not exist, hereinafter referred to as a �workers� representative�) and have sincere consultation.

(4) When an employer intends to dismiss more than a certain number of workers which is defined by the Presidential Decree under the conditions as referred to in paragraph (1), he/she shall report it to the Minister of Labor as determined by the Presidential Decree.

(5) In cases where an employer has dismissed workers in accordance with the requirements as stipulated in paragraphs (1) to (3), it shall be deemed that the dismissal concerned is made based on the justifiable reasons in accordance with paragraph (1) of Article 30. <This Article Wholly Amended by Act No. 5510, Feb. 20, 1998>


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.

Article 35 (Exception of Advance Notice of Dismissal)

The provisions of Article 32 shall not apply to workers who fall within each of the following subparagraphs:

1. a worker who has been employed on a daily basis for less than three consecutive months;

2. a worker who has been employed for a fixed period not exceeding two months;

3. a worker who has been employed as a monthly-paid worker for less than six months ;

4. a worker who has been employed for seasonal work for a fixed period not exceeding six months; and

5. a worker in a probationary period

Grounds permitted under Korean law for termination of employment

http://www.efl-law.org/forums/viewtopic.php?t=1361

When it comes to the matter regarding termination of employment, Korean labor laws are known to apply strict criteria in determining whether a specific termination was just or proper. Let's look at the specific grounds for termination of employment that are prescribed in the Labor Standards Act of Korea (LSA).

Under LSA, an employer may terminate employees pursuant to (i) taking any disciplinary actions taken (with regard to any improper acts committed by the relevant employee) and (ii) laying off of employees due to managerial reasons.

(i) Dismissal by disciplinary action
It is first noted that Article 30 of LSA requires a justifiable cause if and when an employer takes disciplinary actions, including termination of employment, with regard to its employees. Korean courts have held that a justifiable cause refers to such causes as criminal offense, serious illegal acts, and gross negligent acts, etc. which would make maintaining of the relevant employment relationships no longer possible under generally accepted public notions.

Article 30 (Restriction on Dismissal, etc.)

(1) An employer shall not dismiss, lay off, suspend, transfer a worker, or reduce wages, or take other punitive measures against a worker without justifiable reason.

(2) An employer shall not dismiss any worker during a period of temporary interruption of work for medical treatment of an occupational injury or disease and within 30 days thereafter; nor shall any female worker before and after childbirth be dismissed during a period of temporary interruption of work as provided herein and within 30 days thereafter; however, if an employer has paid the lump sum compensation due under Article 87 hereof or is not able to continue his business, this shall not apply.

Especially, because a termination of employment is the most extreme measure, taking away an employee's means of making a living, Korean courts are known to be very strict in applying the above-noted criteria, when it determines whether a particular termination is justified. Thus, unless an employee's specific conduct is something that makes current employer-employee relationship no longer possible to continue, it would be advisable for an employer to take less severe disciplinary actions such as suspension of employment, reduction of salary, or reprimand.

In addition, under the LSA, where an employer wishes to terminate an employee in compliance with (and validly under) the law, there must also be procedural justification to that termination. In other words, the law requires that proper (legally justified) procedures be taken in disciplining the employee, including providing the employee with a proper opportunity to defend himself/herself, no matter how egregious the employee's actions are, and failure to do so will constitute an invalid termination.

(ii) Dismissal due to managerial reason

Further, as regards the employment termination, under LSA, an employer may also terminate employees where the employer can establish an imminent managerial reason. Article 31 of LSA provides that before an employer terminates a group of employees, the employer must have made its best efforts to avoid termination and have fair and reasonable standards of termination in place. The termination of employees must have been based on such standards for termination and the employer must have given notice to and consulted with the employees?relevant labor representative (i.e., labor union).

It is the firm position of the Korean Supreme Court that an imminent managerial reason exists if the employer's termination of employees is rational from an objective standpoint. The Korean Supreme Court has recognized the existence of an imminent managerial reason in the following cases: (a) the employer has continuously experienced deficit operation; (b) due to continuous labor disputes, the operation of the employer is expected to worsen to a degree that half of the capital amount of the employer has decreased for one year; (c) a part of the business is changed to a sub-contract system due to continuous deficit operation and, as a result, the employer terminated the employment of related employees; or (d) in the course of privatization of a public corporation, reorganization of the corporation has been taken.

In light of the foregoing, it can be concluded that an imminent managerial reason to terminate will be found to exist where it is inevitable that the employer must terminate employment in order to overcome actual difficulties in management. However, even where an employer with a positive balance sheet terminates the employment of a group of employees in order to overcome actual difficulties or to generate additional revenues, the existence of an imminent managerial reason will not be found to exist unless the inevitability of such termination can be proven objectively.

Therefore, as described above, unless there is a legitimate, objective reason to terminate employees, it is not easy under current Korean labor laws to establish a justifiable cause or imminent managerial reason to terminate employees under LSA. However, as an alternative to termination, it is sometimes recommended that an employer attempt to persuade those employees whom it wishes to terminate to voluntarily retire from his/or her office. It is customary practice in Korea for an employer to induce the early retirement of employees whom they wish to terminate by offering them a reasonable severance package. Though not required by Korean law, a Korean company will ordinarily offer early retirement employees additional severance pay in addition to severance pay in accordance with standards set forth in LSA or the employer's employment rules and regulations.

2. Procedures regarding a court-sponsored mediation

There are two kinds of mediation that could take place in the course of litigation before a Korean court, which we briefly note below.

Under Korean law and practice, courts sometimes suspend pending litigation to request that the parties in the litigation try to reach a settlement. The courts may take such measure even after the close of hearing. The courts often rely on such procedure, which is called court-sponsored meditation, when the legal issues are highly complex or are not clear-cut, or if they believe that the dispute is better suited to a settlement rather than a decision entirely in favor of one party. In such a procedure, the court will typically hold a mediation session in court. If the parties cannot reach a settlement, then the mediation is stopped, the suspension on litigation is lifted, and litigation resumes.

It is also noted that there exists a less voluntary variation on court-sponsored mediation (so-called court-ordered mediation). Under this approach, rather than request the parties to try to reach an agreement, the court may present a settlement proposal for the parties?consideration after listening to the parties during the mediation hearing(s). In such case, any party can reject the settlement order within 2 weeks of receiving the written notice of the court's settlement order. However, if neither party files their objection within the 2-week period, the court's order becomes final. It is then entered into court records as the final decision in the case. If any party rejects the settlement order, the mediation is dissolved and litigation resumes.

[Hotpants]

Sorry to hear of your situation, BlackJack. This is a tale straight out of the bad hogwan experience book and unfortunately why so many hagwons have a bad reputation. Some employers have been known to fire at the 11th month in order to avoid severance. However, you ARE entitled to severance, and should not be fired at short notice. Just go straight to the labor board if you denied either:
http://www.korealisting.com/level_one/Directories/embassies/labor_board.htm

Certainly don't take any rash action against the school. Why stoop lower than your employer? I hate the way many Koreans can't act professionally when things don't go the way they want, which includes the childish mannerism of throwing all sorts of verbal threats at their employees.

As for having to be out of the country within 14 days of the end of a contract, if you want to get another job in Korea and see your labor board claim through, a short hop over to Japan and back into Korea again would be straightforward. Why not start applying for positions now and plan where to stay if you are suddenly put out on the street?

[poet13]

If you are fired on Monday, you may very well be tempted to explode in anger, adn say all those hateful things that you've always wanted to say to someone like that.
Don't do it.
Get the letter of firing in writing, and head straight to the board of labor. Firing you at 11 months is a pretty transparent ploy and things whould go well in your favor. They have to giver you 30 days notice and pay you for that period....which takes you to the end of your contract. I would bet that director backs off of firing you, but you should expect a miserable month. It's only a month. Bear with it and grab up that severance pay.

[Roch]

[blackjack]

Cheers for the support i guess it will all be answered on Monday. Funny all this over four days pay

[kermo]

Having read "The Geography of Thought" by R. Nisbett has given me a whole new outlook on these kinds of disputes. Blackjack, you are absolutely within your rights to ask for your vacation or the cash equivalent. It's logical, irrefutable, simple... from our perspective.
Westerners like to categorize, analyze, assign attributes and look at things under the microscope. Easterners tend to look at things in a very holistic way, taking into account circumstance, context, relationships, and often setting aside what we would consider to be the most "fair" outcome in pursuit of the "middle way."

I don't have any advice here, except to approach this from a very human perspective, as your cold logic is not likely to carry much weight.

[Young FRANKenstein]

[Pak Yu Man]

They must give you 30 days notice. That's the Law. Tell them this. Either they fire you on the spot and have to pay your final month wages (your notice) or they can wait. Either way you kind of win.

[Ody]

you write so beautifully, kermo.

i wish i had read "The Geography of Thought" 20 years ago. it might have saved me a lot of grief.

[ChuckECheese]

Not to worry Blackjack. You'll end up winning and stupid f-king boss will lose.

But play it cool.

If you ever get the letter of termination, don't show any emotion(poker faced) and just go straight to the labor board with one of your K-friend.

[JeJuJitsu]

...and some of you just got done posting in the "hagwons are way better than public schools" thread...

[spliff]

Well, it's Monday. We're all waiting to see if you get fired....

[blackjack]

so am i will have news either 3.30 if i am fired or 11.00 if i am not (after hapkido). I am amost looking forwards to a letter of termination it would add a bit of excitement to the day and make a great little stroy for back home

and cheers for the support spliff