By Kim Se-jeong
The Constitutional Court ruled Tuesday that paying foreign workers severance pay only after they depart from Korea does not violate the nation’s Constitution.
In a six to three vote, the court ruled that the clause in the current Labor Law requiring foreign workers to wait until after they leave Korea to receive their severance pay is constitutional, rejecting three migrant workers’ claims that late payment violates their rights.
Severance pay, officially known as Departure Guarantee Insurance, is provided under the Employment Permit System. Foreign workers who work for at least one year are eligible for it.
The clause stipulates that severance pay is provided within 14 days after the workers leave Korea. Previously, the workers received severance pay at the end of employment, and the government said that many workers did not return home after receiving it, staying illegally. So the clause was added to the law in January 2014.
Yet, complaints were reported that some workers failed to receive the pay because they had difficulty opening a bank account back home for money transfer or lost contact with their former employers while waiting for the money.
In May 2014, three workers from Uzbekistan filed the petition with the court, arguing that the clause violated their property rights and that the severance pay should be given to them as soon as their contract was terminated.
But the court said the measure is necessary to prevent foreign workers from staying illegally.
“Severance pay is crucial for the workers. However, given that various problems are caused by staying illegally, it is inevitable for the Korean government to link the time of payment with departure, using it as a tool to encourage workers to return to their home country when their contract is up,” the court said.
It also dismissed the claim that the payment unfairly discriminated against the foreign workers compared to Korean workers, explaining that foreigners get their employment permits under the condition that they will leave the country immediately when their contract is terminated.
Korea has 269,745 foreigner workers under the Employment Permit System as of April 1, according to the Ministry of Employment and Labor. Vietnamese topped the number with more than 100,000, followed by Thais and Indonesians.