Resigned or Dismissed? The TESOL Teacher Case That Needed a Second Hearing to Get Right

 

Here is a question that comes up more often than people realize in Korean workplaces: if you leave your job because your employer strongly suggested you leave, is that a resignation, or is that a dismissal? The answer matters enormously, because only dismissed employees can file for unfair dismissal remedy — someone who "voluntarily" resigned has no such right.

I want to walk you through a case that took two full rounds of hearings to sort this out correctly, because even the Labor Relations Commission got it wrong the first time.

An American teacher was hired by a TESOL institute with a head office in Seoul and a branch in Busan. When a teacher at the Busan branch suddenly resigned, the institute needed someone quickly, so they brought this employee on as a temporary teacher for three weeks while her E-2 visa paperwork was being processed — since a regular E-2 visa actually requires a signed regular employment contract to begin with. She signed two contracts on the same day in August 2009: a three-week temporary one, and a one-year regular contract meant to start once the temporary period ended.

She completed her three-week temporary assignment at the Busan branch. But then, instead of moving her into the one-year contract as planned, the employer called her in and told her that TESOL teaching simply was not suited to her — that she would be better as a general English conversation teacher instead — and offered to help her find another position through a recruiter.

Understandably shaken, she called a lawyer she knew through a friend. That lawyer contacted the employer, not to represent her formally, but simply to ask, out of concern for her situation, whether the employer could let her stay in her employee housing a little longer, free of charge, since she had no other place to go as a foreigner in Korea. The employer agreed, and they signed a written agreement covering an adjusted salary for her Busan work and hotel expenses, plus permission to stay in the employee housing for one more month.

She did not go back to work after that call. She did not file any complaint immediately either — not because she accepted what happened, but because she genuinely did not know Korean labor remedy procedures yet, and did not have money to hire a lawyer. She eventually learned about her rights through consultation at the Seoul Global Center, and once she had saved enough for legal fees, she filed for remedy — but only months later, after she had already taken a new teaching job at a high school in November to support herself and save up for legal costs.

This is where the story took an unfair turn. The Seoul Labor Commission looked at all of this — the signed agreement about salary and housing, the fact that she had not shown up to work or complained right away, and the fact that she had since found new employment — and concluded that both sides had essentially agreed to end things before her one-year contract even began. In their view, this was not a dismissal at all. It was mutual termination. Her application for remedy was rejected.

She appealed to the National Labor Relations Commission, and this is where things were finally set right. On review, the higher Commission looked more carefully at what that signed agreement actually said — and it turned out the agreement said nothing at all about her employment status. It only covered salary adjustments and extra housing. There was no line in it saying she agreed to resign, or agreed the contract would not proceed. The Commission also recognized that her silence and her decision to accept a new job afterward made complete sense: she needed to survive, pay her bills, and save money for a legal retainer, precisely so she could eventually fight for her rights. Getting a new job did not mean she had given up her claim — it meant she was being responsible while preparing to pursue it.

The National Labor Relations Commission overturned the earlier decision, ruled this was in fact an unfair dismissal, and — since she had already moved on to a new job and was requesting financial compensation instead of reinstatement — calculated a specific compensation amount instead. The final award came to 17,509,040 won, covering both the period she was unemployed after her dismissal and the wage gap during the months she was reemployed at a lower salary than she had been earning before.

I think about this case often, kababayan, because so many of us have felt pressured into "agreeing" to something during a stressful conversation with an employer, only to sign a document without realizing exactly what it does and does not say. The lesson here is precious: an agreement about your salary or your housing arrangement is not automatically an agreement about your resignation. Those are two completely separate things, and Korean labor authorities will look very closely at what the actual written words say — not just what the employer assumed you meant by signing.

And if you ever find yourself in a similar spot, please do not blame yourself for taking time to file a complaint, or for taking a new job in the meantime to survive. The law understood that this employee had to eat, had to pay rent, had to save for legal help — and it did not hold that against her.

Mag-ingat po tayo sa mga pinapapirmahan sa atin kapag nasa gitna ng problema. Basahin munang mabuti, at kung kailangan, magpaliwanag muna bago pumirma ng kahit ano.

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