I received KRW 2.5 million per month from a Chinese restaurant and worked for 3 years and left the job. After I left, I asked the employer for my severance pay. The employer said he cannot pay because he had paid me more than my salary each month, as it included severance pay from the beginning. It seems to have been said that way verbally but at that time I didn’t have a clear idea of what it was and agreed because I would be paid more. Is it true that I cannot receive severance pay?
Severance pay is a post-pay wage that can be earned only when you have worked for at least one year. Therefore, in principle, there is no severance pay during the period of active service, unless and only if it falls under the conditions prescribed by law for interim payment of severance pay. Even in such a case, paying severance pay as part of salary is not the same as an interim payment of severance pay.
Therefore, if it is only verbally agreed or if the contract stipulates that the wage will include severance pay without any specific amount, that part of the contract will be considered null and void and a separate severance pay must be paid. However, if it has been clearly distinguished objectively how much has been paid by distinguishing severance payment items in the monthly paycheck statement, and if it is confirmed that both the employer and the employee are aware of the fact, the employer may be entitled to claim a return of undue profit.
In reality, when employers hire foreign workers, they pay higher wages on condition that severance pay is included but estimates based on working hours may not meet the minimum wage. Therefore, it is important to actually calculate whether your salary includes the amount of severance pay to which you are entitled.