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Breach of Contract?

Work Permits, Employment Qualifications, Employer Problems
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Re: Breach of Contract?

Postby just_chris » 28 Jan 2016, 18:20

Abacus wrote:How many hours of class did you miss? That would also be a reasonable way to calculate it.


Over 8 days or the entire time I was gone?
Listen, strange women lyin' in ponds distributin' swords is no basis for a system of government. Supreme executive power derives from a mandate from the masses, not from some farcical aquatic ceremony.
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Re: Breach of Contract?

Postby yyy » 28 Jan 2016, 19:31

just_chris wrote:This was their reply,

I have had a talk with Miss Wu about your bereavement money. She admitted that the formula 26/42x8 daysx8hrs is wrong. 39.62 hours are over 9.5 days according to your weekly hours.
The formula we had for you was based on the answer from an officer, Mr. Lu, who works at the labor insurance department and our lawyer calculated the amount. The answer was specific for cram schools’ teachers and employees’ situation. After the talk with Miss Wu, we consulted another officer at the labor insurance department. He didn’t know either because Foreign English teachers’ working hours are complicated and can’t really fit in the normal regulations.

We now still follow the answer from Mr. Lu but use the average hours, not the actual hours, and times 26/42 (proportion according to the weekly working hours).

(26hrs/6 days x 8 days x NT$600) x 26/42=NT$12,896

While it's always possible that the officials they talked to are confused (because buxiban teachers rarely file complaints?), it's more likely that the company is intentionally blowing hot air.

correct formula for 8 days: 26 / 42 x 8 x 8 x $600 = $23,771
what you would have earned over 7 days(?): 26 x $600 = $15,600
their formula for 8 days: 26 / 6 x 8 x $600 x 26 / 42 [wtf?] = $12,876

As this is a labor-management dispute and not an insurance claim, they have no reason to involve the Bureau of Labor Insurance, other than to confuse you.
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Re: Breach of Contract?

Postby Abacus » 28 Jan 2016, 22:40

just_chris wrote:
Abacus wrote:How many hours of class did you miss? That would also be a reasonable way to calculate it.


Over 8 days or the entire time I was gone?


During the time that you missed for your father's funeral that is being compensated for. Were you gone to your father's funeral for longer than the bereavement period?

I really don't think using a formula (assuming each day is the same) makes sense since English teachers don't work the same # of hours each day.

For example I work 6 hrs, 2 hrs, 6 hrs, 6 hrs and 2 hrs (M-F) My average is 4.4 hrs but I wouldn't expect 4.4 hrs of payment for a Friday if I was entitled to it. Because of this I can see why you wouldn't get 39.62 hours as yyy calculated but you should get the 32.5 (hours you would have worked). Are they still trying to pay you 26 hrs? The 26 hrs math makes no sense at all.
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Re: Breach of Contract?

Postby yyy » 29 Jan 2016, 00:14

Abacus wrote:I really don't think using a formula (assuming each day is the same) makes sense since English teachers don't work the same # of hours each day.

For example I work 6 hrs, 2 hrs, 6 hrs, 6 hrs and 2 hrs (M-F) My average is 4.4 hrs but I wouldn't expect 4.4 hrs of payment for a Friday if I was entitled to it. Because of this I can see why you wouldn't get 39.62 hours as yyy calculated but you should get the 32.5 (hours you would have worked). Are they still trying to pay you 26 hrs? The 26 hrs math makes no sense at all.

Your point is perfectly logical, but the regulation says what it says (and has been confirmed by the labor department), and there's also a logical argument in favor of the regulation, namely that due to the realities of life, if you make everything completely proportional for part-time workers, they lose more by having less income than they gain by having more free time.

The not-quite-proportional principle is not limited to leave pay. For example, the Basic Wage is $120/hour and $20,008/month. Whether you use the standard hours in effect when the BW was last increased (July 2015) or the new standard hours (Jan 2016), you get a discrepancy:

Full-time on monthly salary: $20,008
Full-time on hourly salary (old): $120 x 42 / 7 x 30.42 = $21,902 (about 9.5% more)
Full-time on hourly salary (new): $120 x 40 / 7 x 30.42 = $20,859 (about 4.3% more)

But it's unlikely anyone on an hourly salary would actually work 40 or 42h/w.

In the case of leave for a specific purpose (not vacation time), the burdens of full-time and part-time employees are the same (funerals, illnesses, etc.) and obviously not proportional, so while it would make sense to do a simple pretend-the-employee-is-still-here calculation, the MOL's formula also makes sense. :2cents:
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Re: Breach of Contract?

Postby just_chris » 29 Jan 2016, 03:13

Abacus wrote:
just_chris wrote:
Abacus wrote:How many hours of class did you miss? That would also be a reasonable way to calculate it.


Over 8 days or the entire time I was gone?


During the time that you missed for your father's funeral that is being compensated for. Were you gone to your father's funeral for longer than the bereavement period?

I really don't think using a formula (assuming each day is the same) makes sense since English teachers don't work the same # of hours each day.

For example I work 6 hrs, 2 hrs, 6 hrs, 6 hrs and 2 hrs (M-F) My average is 4.4 hrs but I wouldn't expect 4.4 hrs of payment for a Friday if I was entitled to it. Because of this I can see why you wouldn't get 39.62 hours as yyy calculated but you should get the 32.5 (hours you would have worked). Are they still trying to pay you 26 hrs? The 26 hrs math makes no sense at all.


Yes, I work 3.5 hours on Monday and Wednesday but 7.5 on Saturday. I missed a total of 9 days the 15th through 24th and came back over Moon Festival which began on the 25th.

The labor board contacted the school who at least it appears verbally agreed to compensate me the remaining balance however the woman said she can't "guarantee" anything. The school requested something in writing from the labor board which indicated what formula they need to use in the future. Apparently there is some mixup at least from what the labor board was telling me over a certain character which I think is in section 8 which in my Chinese translates to "refer to" or "get" de' or 德 but from what my buddy was telling me is for some reason in a lot of legal contracts and in the 3rd tone means "suggested" . My guess is I am not going to have a resolution to this by Chinese New Year. I am of the opinion that the school is just trying to avoid paying but I would think by now with the the amount of times I have gone back to the labor board that I'm not going to go away.

In something kind of related the CEO of the school essentially called me an "asshole" on Facebook , sadly I wasn't quick enough to get a screen shot before it was deleted... this was after I was told by another employee in the head office that I was "immature". Very professional school I am dealing with.
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Re: Breach of Contract?

Postby Abacus » 29 Jan 2016, 08:06

This is the response that I would expect probably from 75% (or more) schools that are contacted by the labor board for violations. And it is the reason that only people with both feet out the door already should be going to the labor board. Unfortunate truth.
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Re: Breach of Contract?

Postby yyy » 29 Jan 2016, 14:17

just_chris wrote:The labor board contacted the school who at least it appears verbally agreed to compensate me the remaining balance however the woman said she can't "guarantee" anything. The school requested something in writing from the labor board which indicated what formula they need to use in the future. Apparently there is some mixup at least from what the labor board was telling me over a certain character which I think is in section 8 which in my Chinese translates to "refer to" or "get" de' or 德 but from what my buddy was telling me is for some reason in a lot of legal contracts and in the 3rd tone means "suggested" . My guess is I am not going to have a resolution to this by Chinese New Year. I am of the opinion that the school is just trying to avoid paying but I would think by now with the the amount of times I have gone back to the labor board that I'm not going to go away.

In something kind of related the CEO of the school essentially called me an "asshole" on Facebook , sadly I wasn't quick enough to get a screen shot before it was deleted... this was after I was told by another employee in the head office that I was "immature". Very professional school I am dealing with.

Conventional translations from formal Chinese can sound very euphemistic, like when the government writes that something is 難 (difficult), meaning it's impossible (or rather that the government refuses to do it), or the many legal phrases stating that someone 應 (should) do something, but failure to do it results in a fine. If you look through the Labor Standards Act you can see many instances of 得 officially translated as may and 不得 officially translated as shall not, e.g. each party may terminate the contract with a valid reason, but the employer shall not terminate it without a valid reason (Art. 11, 12, 14). Even if the 得 in 6.3.4 of the part-time rules is interpreted as meaning permission and not obligation, the formula still prevails in the absence of any agreement to the contrary.
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Re: Breach of Contract?

Postby yyy » 01 Feb 2016, 22:32

just_chris wrote:This was their reply,

I have had a talk with Miss Wu about your bereavement money. She admitted that the formula 26/42x8 daysx8hrs is wrong. 39.62 hours are over 9.5 days according to your weekly hours.
The formula we had for you was based on the answer from an officer, Mr. Lu, who works at the labor insurance department and our lawyer calculated the amount. The answer was specific for cram schools’ teachers and employees’ situation. After the talk with Miss Wu, we consulted another officer at the labor insurance department. He didn’t know either because Foreign English teachers’ working hours are complicated and can’t really fit in the normal regulations.

We now still follow the answer from Mr. Lu but use the average hours, not the actual hours, and times 26/42 (proportion according to the weekly working hours).

(26hrs/6 days x 8 days x NT$600) x 26/42=NT$12,896

They've inadvertently done a favor to you and anyone else in a similar situation who reads this. I think they actually meant "labor department" not "labor insurance department" (a Freudian slip?), but the mention of "insurance" made me curious, so I did some digging and found out there is a labor insurance benefit you can claim, much larger than the leave pay. It's been mentioned in other threads but without much detail, so I'll start a new thread on it.

If they didn't apply for labor insurance on your behalf (it's mandatory for most employers, including buxibans), and you didn't have labor insurance from any other employer at the time, then the Bureau won't pay you, so you'll have to sue the company. If you're going to sue them anyway, you can combine the claims.
yyy
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