The Most Disappointing Dismissal Case: Fired One Week After Arriving in Korea

 

Of all the labor cases I have come across while studying Korean labor law, this one left me the most disturbed — and I found out I was not alone in that feeling. Even the labor attorney who handled this case, someone who has represented many foreign workers over the years, wrote that this was the most disappointing dismissal case of his career, because the worker was unable to get any legal remedy at all.

Let me walk you through what happened.

An Australian man applied online for an English instructor position at a language institute here in Korea. He went through the whole process the right way — a proper application, essays, phone interviews, then a face-to-face interview conducted by the institute's Australian field recruiter. Two weeks of hiring procedures. He signed a preliminary "Offer of Employment." A few weeks later, at his own expense, he obtained a criminal record check. He then signed a full employment contract. He got his E-2 visa from the Korean Embassy in Australia. He paid for his own flight to Korea. When he arrived, the institute put him up in a hotel.

Then came the training course — five days, July 20 to 24. Out of eleven new foreign instructors starting that same training program, he was the only one assigned to the "advanced" level. The material he was asked to teach in his test lesson was not even a basic English class — it was a critical thinking class using a textbook normally used for college students in native English-speaking countries. He did not pass the test they called the "Mock-up." The trainer offered him a chance to retake it. He refused, twice. And with that, one week after landing in Korea, he was dismissed.

He filed for remedy with the Labor Relations Commission. Rejected. He appealed to the National Labor Relations Commission. Rejected again.

Here is the part that still bothers me the most. This was not an isolated incident. Two months before this man's dismissal, the same institute had dismissed an American instructor under the exact same contract, for the exact same reason — failing the same training test. That American instructor later said publicly that if he had known passing this training course would determine whether he actually got hired, he never would have come to Korea at all. He had already paid for his own airfare and hotel expenses too, just like the Australian man after him.

So why did both cases fail?

The employment contract contained a conditional clause: it would only take effect once the employee received a certificate showing he had completed the training course. Legally, this meant that in the eyes of the Commission, no actual employment relationship had ever been established. If there was no employment relationship, there could be no "dismissal" to challenge — because you cannot be unfairly dismissed from a job you were never legally considered to have started.

Even the Commission and the courts seemed to sense something was unfair here. The employee's side pointed out — quite reasonably, I think — that of eleven trainees, only he was placed in the advanced level; that he was never told beforehand that his employment depended entirely on passing this specific test; and that the class content itself was unusually difficult, more suited to native-speaking university students than to a language training program. But because the letter of the contract said what it said, the legal reasoning held, and the dismissal was found justifiable.

I share this story not to scare you, kababayan, but because I think every one of us who signs an employment contract before flying to Korea needs to understand something clearly: a conditional clause in your contract — language that says your job only "becomes effective" once you meet some condition — can leave you completely unprotected if things go wrong during that conditional period. Before you resign from a stable situation back home, before you spend your own money on flights and paperwork, ask direct questions. Ask what happens if you do not pass a training or evaluation period. Ask whether your contract is truly in effect from day one, or only "in effect" once some hidden hurdle is cleared. It might feel awkward to ask such pointed questions to a recruiter who has been kind to you throughout the hiring process, but as this case shows, kindness during recruitment does not always continue once you arrive.

Ingat po tayong lahat. Basahin nang mabuti ang kontrata bago pumirma, at kung may kondisyon na hindi malinaw, magtanong muna bago tuluyang umalis ng bansa.