Understanding Severance Pay Rules for Additional Recruitment

When a company hires new employees, the working conditions are generally governed by the Rules of Employment (Employment Regulations) in effect at the time the contract is signed. This can lead to confusion for those who were hired through 'additional recruitment' or 'backfilling' after initially failing a recruitment exam.

The Legal Nature of Employment Contracts

In Korea, an employment contract is formed through an offer and acceptance. When you apply for a job, you are making an offer. If the company does not hire you by the final announcement date, that initial offer loses its legal effect.

If the company later decides to hire from the pool of previously unsuccessful candidates and you undergo a new interview, this is considered a new legal offer and acceptance.

Which Severance Pay Rules Apply?

If the company's severance pay regulations were amended between your initial application and your actual hiring date, the new regulations typically apply.

Supreme Court Precedent (97Da53496):"If a worker is hired through additional recruitment after the severance pay rules were changed to be less favorable, the employment contract is formed based on the rules in effect at the time of the new recruitment process. Unless there was a specific agreement to exclude the new rules, the amended regulations apply."

Is This Unfair Discrimination?

You might feel it is unfair if your colleagues, who passed the initial exam, receive higher severance pay under the old rules. However, the court has ruled that this is not a violation of the 'prohibition of differential severance pay systems.'

  • The difference arises from the timing of the contract formation.
  • As long as the severance pay amount exceeds the minimum legal standard required by the Labor Standards Act, applying different rules based on the hiring date is generally considered legal.

Summary of Key Points

  • Contract Timing: The laws in effect on the day you officially start/sign are what matter most.
  • Expired Offers: Your first application under old rules doesn't 'lock in' those rules if you weren't hired then.
  • Check Your Contract: Unless you specifically negotiated to be under the old rules, the current rules at the time of hiring apply.

This information is for educational purposes. For specific legal disputes, please consult with a certified labor attorney.