Home | Databases | WorldLII | Search | Feedback National Human Rights Commission of Korea - Complaint Summaries

Discrimination against Substitute Teachers in the Payment of Compensation for Vacations and Retirement Allowances [2003] KRNHRC 27 (1 March 2003)

Three complainants filed a petition against the principals of their respective schools, the
Gyeonggi-do Provincial Office of Education, and the Minister of Education and Human
Resources Development, arguing "It is discriminatory to not pay compensation for vacations
and retirement allowances on grounds that we are substitute teachers". One of the
complainants, who worked as a substitute health teacher at OO Middle School in
Yangju-gun, Gyeonggi-do Province, was not paid compensation during vacations. The
school argued that it did not pay compensation during vacations because substitute teachers
need not come to school to work as no students came to school during vacations. However,
the Commission decided that vacations for a substitute health teacher were important for
rest and preparation for the next semester by such means as researching teaching materials,
which is the case for regular health teachers. The Commission recognized that the school's
actions against the complainant constituted discrimination without reasonable grounds. The
Commission recommended that the principal of OO Middle School pay unpaid
compensation for vacations to the complainant.

The other two complainants are substitute teachers at OO Elementary School in
Goyang-si and OO High School in Gunpo-si, respectively. They filed a petition stating that
the schools set the contract terms of service from March 2, 2002 to February 28, 2003, just
one day short of a full year in order to avoid having to pay the legally required retirement
allowance. The Commission recommended that the principal of the two schools pay retirement allowances.
The school insisted that they did not pay retirement allowances because the terms of
service were less than full one year as prescribed by Article 34 of the Labor Standards Act.
However, the Commission found that, in cases where contracted terms of service did not
exceed full one year in form, if the period excluded from the contract was the first day of
new school semester, it should be deemed that labor continued practically without
interruption. Accordingly, the Commission recommended payment of the retirement allowance.

Previously in March 2003, the Commission recommended that the principal of the school
concerned, the commissioner of the Office of Education concerned, and the Minister of
Education and Human Resources Development revise the applicable administrative rules and
regulations including the Substitute Teacher Management Guidelines in recognition that the
failures to pay the substitute teachers less favorably than regular teachers constituted a
discriminatory act in violation of the right to equality. In response, the Ministry of
Education and Human Resources Development revised the Substitute Teacher Management
Guidelines, under which discriminatory practices and rules against substitute teachers were
corrected considerably.