As a TEFL teacher working in Korea, it’s important to understand your rights and responsibilities under Korean labor law. One common issue many teachers face is resigning from their jobs, especially when leaving without proper notice, often referred to as “unauthorized resignation” or “무단 퇴사” in Korean. This article will help clarify the potential consequences and what you need to know to avoid legal problems.
Can You Resign at Any Time?
Legally, employees in Korea can resign, but there are conditions to consider. According to the Labor Standards Act, employers can only dismiss employees with a justified reason, and they must notify the employee 30 days in advance or pay for that 30-day period. However, for employees, the rules around resignation are less strict.
For regular employees (those with indefinite contracts), the Civil Act (Article 660) specifies that if your employer does not accept your resignation, the resignation will not take effect until the next pay period has fully passed. This means that if you resign but your employer does not approve, your resignation will only take effect after the following pay period ends.
For example, if you resign in September and your employer does not accept your resignation, you would need to continue working through October, and your resignation would take effect from November 1st. This rule applies only to regular employees, not to contract workers like most TEFL teachers.
What About Contract Workers?
Most TEFL teachers in Korea work on fixed-term contracts, typically one year in length. For contract employees, the Civil Act provides that if there is an unavoidable reason, they can terminate their contract immediately. However, the law does not clearly define what constitutes an “unavoidable reason” or whether the resignation takes effect immediately in such cases.
In practice, even for contract employees, it is generally expected that at least one month’s notice is given before resigning. This is a common expectation in Korea, although it may not be legally required in all cases.
Contract vs. Civil Law
One important point to keep in mind is that if the terms of your employment contract or company’s internal regulations are more favorable to you than the Civil Act, those terms will take precedence. For example, while the Civil Act might delay the effective date of resignation by up to two months, if your employment contract states that you only need to give 30 days’ notice, then the contract terms will apply, allowing your resignation to take effect after 30 days.
Important Protections Under Labor Standards Act Article 19
The Labor Standards Act Article 19 can be a valuable tool for TEFL teachers who wish to resign, though it is not commonly used in practice. This article allows you to immediately terminate your contract if your working conditions differ from those agreed upon in your employment contract.
For example, if your contract promises certain break times or specific wages, but your employer does not honor those terms, you can use this as grounds to leave without needing to give notice. If your employer refuses to accept your resignation, you will need to gather evidence to support your case. This might include written communications or recordings of conversations where you have raised issues with your working conditions and were denied.
If, for instance, your contract specifies that you are entitled to a break from 3:00 to 3:30 p.m., but you never actually receive this break, you can mention this to your employer. If they respond with something like, “We’re a small business, so we can’t give breaks,” you can record this conversation (with their consent) to use as evidence if needed.
Avoid Signing a Resignation Letter
If you are not facing personal circumstances that require immediate resignation, or if your employer has not seriously violated the terms of your contract or labor laws, do not submit a resignation letter or sign one provided by your employer. Resigning without proper cause or under pressure may weaken your legal standing in case of future disputes. Be sure to understand your rights and only proceed with resignation when absolutely necessary.
What Happens If You Resign Without Notice?
If your employment contract or conditions are not being violated but you still want to resign immediately and your employer refuses to accept it, things can get tricky. While your employer cannot legally force you to work (as forced labor is prohibited under Korean law), they could potentially seek damages for any financial harm caused by your sudden departure.
As mentioned earlier, if your resignation is delayed by up to two months, any days you don’t work will be considered unauthorized absences. If your absence causes the business significant financial harm, your employer could attempt to file a claim for damages. However, for them to succeed, they would need to prove the exact amount of damage caused by your absence, which can be difficult, especially in larger businesses.
In small businesses, where your role might be more critical, it might be easier for the employer to demonstrate damage. But even in these cases, such lawsuits are rare because they are time-consuming, expensive, and difficult to prove.
E-2 Visa Holders: Release Letter and Job Transfer
If you are an E-2 visa holder and plan to stay in Korea to transfer to another job after resigning, you will need a release letter (이적동의서) from your current employer. Without this document, you cannot legally transfer to another employer. For detailed information on how to change jobs without a release letter, or how to compel your employer to issue one, you can refer to the following article: How to Change Jobs Without a Release Letter or Compel Your Employer to Issue One.
Final Pay and Resignation
Another issue to watch out for is your final paycheck. Some employers may try to withhold your last salary or severance pay if you resign without giving proper notice. However, they are legally obligated to pay you for the work you’ve completed. If your employer refuses, you can file a claim with the labor office.
If you have worked for more than one year, you are entitled to severance pay, which is based on your average wage over the last three months. Even if you missed work during this period due to unauthorized absences, your severance pay can be still calculated based on your hourly wage (known as “통상임금” ordinary wages), not on how much time you actually worked during those months.
In Conclusion
Understanding your rights as a TEFL teacher in Korea can help you avoid complications when resigning. Always try to give at least 30 days’ notice to reduce risks, and if your working conditions violate your contract, be sure to gather evidence. If issues arise, seek advice from the labor office or a legal professional.
With the right preparation, you can ensure that your resignation is handled smoothly and that your rights are protected.
