This week we address three questions we were sent dealing with employer-employee relationships and disability discrimination.
Question: My employer is not allowing a coworker to extend his contract because he has cancer. They told him this is the reason they don’t want him to work for them anymore. Is this illegal discrimination?
Answer: The only act protecting against discrimination is one based on disability, so he would only qualify as protected under that act if his cancer was so severe as to interfere with his ability to live and work.
Under the labor law, if he has been there two years or less (not two years plus one day or more) then when his contract is over, it is simply over. If longer, he cannot be dismissed unless his work is inadequate. If his work is inadequate due to illness that was not caused by work, he can be dismissed.
However, if he is here on an employment visa, employers often tell immigration the contract is not renewed, which terminates the visa and makes employment illegal (and the employer is then justified in not rehiring him).
The problem for him, besides the visa issue, is that if his cancer is severe enough to protect him from discrimination, it is probably severe enough that the employer is justified under labor law for firing him. Effectively he could collect damages based on, at most, one law but not the other (neither if he is under two years and not suffering severely) but in both cases the most likely remedy is a small monetary payment, not reinstatement. So if he is concerned with visa or health insurance issues, he should be looking for another job.
Q: I recently finished a contract with an employer after working at this place for two years, and I am owed a severance bonus for each year completed for a total of X million won. I have not been paid any of it so far. What can I do to get what I am owed? I tried calling the Labor Board, but as I am not fluent in Korean, I found the phone menus difficult to navigate.
A: Yes, you are entitled to your severance. As for trying to collect it by yourself, that is only possible if you are in country and can find a translator to help you with the paperwork and attend the Labor Board hearings. Not impossible, but if the board calls you, or your employer wants to negotiate, it may be difficult to schedule the translator, and the translator will need to have some grasp of law to do a good job.
The other problem you might run into is collecting the money. The labor board has the power to levy to some extent, but to be able to seize property, you have to go through a separate court hearing in civil court.
Q: I have been working with an employer for six months, and although I am on a one-year contract, the employer has said she will terminate me due to financial difficulties. The employer refuses to pay my severance and I have also discovered that, although payments for pension and health insurance were deducted from my paycheck, they were not paid to those entities. Also, as I was in Korea when I was hired, I paid out of pocket to leave the country and obtain a visa and I have not been reimbursed for that expense.
A: Unfortunately, we have several pieces of bad news for you. First, as you worked there less than a year you are not entitled to severance under the law and we doubt that the contract would say otherwise. Second, the sums you are talking about (600,000 won in possibly unpaid deductions, 700,000 won visa run and transcript) are very small when you consider labor counselors usually start at 500,000 won plus a percentage, and attorneys at 1 million won or more.
You can ask the pension office and health insurance office if they received your premiums and, if not, and there is a discrepancy between your payment received and your contract amount, you could bring a labor board claim for unpaid wages. This would involve a translator and you being in country, and would take a few months.
As for the visa run, that expense is not recoverable through the labor board as they are not wages, so you would have to civilly sue her. It would be rare for the contract to say such a thing was reimbursable, but possible, although the legal expenses would probably be more than you would collect.
As a matter of practicality, it’s probably best if you take your last month’s salary, look for a new job, and, after you are secure at the new job, consider the labor board action (and forget about the visa run).
By Yuna Lee and Darren Bean
Yuna Lee is a Korean attorney at Seowoo & Minyul Law Firm in Seoul. You can read her blog at askakoreanlawyer.blogspot.com. If there is a legal issue you would like to be addressed, email askalawyer@naver.com. ― Ed.
Disclaimer: This column is not intended as legal advice. No action should be taken or avoided based on this column, no attorney-client relationship is formed by reading this column or contacting the authors, and the authors expressly disclaim any liability for the content of this column. Those with legal problems in Korea should seek advice from an attorney.
