Does the provision on a two-year term limit in the Act on the Protection, Etc. of Fixed-Term and Part-Time Workers apply to foreign workers?
Article 4 of the Act on the Protection, Etc. of Fixed-Term and Part-Time Workers (hereinafter referred to as the Fixed-Term Workers Act) provides that fixed-term workers may be employed for a period not exceeding two years. However, conditional clauses allow employers to employ such workers for more than two years as exceptions. One example of this is in cases “where other Acts and subordinate statutes provide for an employment period of fixed-term workers differently or allow a labor contract in which the employment period of fixed-term workers is separately prescribed to be made” applies, it is possible to employ the same fixed-term worker for more than two years.
In order for foreigners to work in Korea, they must obtain a status of residence in accordance with the Immigration Act. Their length of stay is also determined by the status of residence in accordance with the relevant laws and regulations. According to an administrative interpretation by the Ministry of Employment and Labor, since period of stay is different for each foreign worker according to their specific visa under the Immigration Act, it may be deemed to correspond to “where other Acts and subordinate statues provide for an employment period differently” in the Fixed-Term Workers Act. However, if the status of residence is F-5 (permanent residence), there is no restriction on the duration of stay (no upper limit on the period of stay granted once). Such visa holders are not subject to the exception set forth in the Fixed-Term Workers Act.
However, in cases where the legitimate expectation for renewal is recognized, the exception is where even if a fixed-term contract is concluded, the labor contract is renewed and repeated several times, so fixing of the term can be seen merely as a formality. Also, when there is a provision in an employment contract or the rules of employment stipulating that an employment contract will be renewed if a certain requirement is met even after expiration of the employment term, so the employee is given a reasonable expectation that the contract will be renewed, a legitimate expectation for renewal is recognized. In this case, even for a fixed-term worker, there must be a reasonable reason for refusal to renew, otherwise, an argument exists that the failure to renew amounts to unfair dismissal.