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Resignation before fixed term contract ends?

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Re: Resignation before fixed term contract ends?

Postby Abacus » 28 Apr 2016, 21:54

yyy wrote:
Abacus wrote:The MOL is not going to terminate a contract and award severance to an employee with giving them a warning about the infractions and an opportunity to improve the conditions.

Where is it written that the employee must not take the initiative to terminate his own contract? That would be quite the nanny state...


The employee can terminate his own contract but he isn't going to be able to immediately terminate and get severance because of a couple of minor labor law violations that the company wasn't aware of (they were but they will deny).
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Re: Resignation before fixed term contract ends?

Postby yyy » 29 Apr 2016, 11:56

Abacus wrote:
yyy wrote:
Abacus wrote:The MOL is not going to terminate a contract and award severance to an employee with giving them a warning about the infractions and an opportunity to improve the conditions.

Where is it written that the employee must not take the initiative to terminate his own contract? That would be quite the nanny state...


The employee can terminate his own contract but he isn't going to be able to immediately terminate and get severance because of a couple of minor labor law violations that the company wasn't aware of (they were but they will deny).

Severance pay is due within 30 days of termination, after which interest begins to accumulate, plus the minimum fine of $300,000. The employer can delay an inspection by requesting mediation and hoping for a settlement (to evade the penalty, because the employee wouldn't be permitted to take administrative or legal action arising from the same dispute after a settlement), but there's no need for the employee to settle, and mediation doesn't extend the deadline for severance pay if the termination has already occurred.
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Re: Resignation before fixed term contract ends?

Postby Abacus » 29 Apr 2016, 14:18

We are not even talking about the same thing. If you quit like the OP wants to you get no severance. Correct me if I am wrong about that.

If you file a complaint that the company has a couple of minor labor law violations then the MOL is going to give the company a chance to correct these issues. They don't immediately jump to immediate contract termination and severance pay.
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Re: Resignation before fixed term contract ends?

Postby yyy » 29 Apr 2016, 14:34

Abacus wrote:We are not even talking about the same thing. If you quit like the OP wants to you get no severance. Correct me if I am wrong about that.

If you file a complaint that the company has a couple of minor labor law violations then the MOL is going to give the company a chance to correct these issues. They don't immediately jump to immediate contract termination and severance pay.

Iirc the question was about whether or not the employee can get in trouble for quitting when the contract has a fixed term and no clause to allow the employee to quit, and the period of service does not exceed three years. My point is that if the employee quits by performing an Art. 14 termination, he can't get in trouble (unless the company reports him for being awol, but in the end he will prevail as long as he can prove the termination was valid).

If you want to quit using Art. 14, you don't do it by filing a complaint. You do it by quitting (giving the employer immediate notice of the fact that you're quitting and your reason(s) for doing so). If the employer refuses to co-operate, then you file a complaint, and in the end it will be affirmed that the contract was terminated on the day you terminated it. If you don't want severance pay, you don't need to pursue it.
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Re: Resignation before fixed term contract ends?

Postby Ricarte » 29 Apr 2016, 15:42

What kind of work do you do yyy?

It sounds like you have some knowledge on the topic, but it would be good to know that it comes from practical experience besides knowing the content of the laws. :)
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Re: Resignation before fixed term contract ends?

Postby yyy » 29 Apr 2016, 23:59

Ricarte wrote:What kind of work do you do yyy?

It sounds like you have some knowledge on the topic, but it would be good to know that it comes from practical experience besides knowing the content of the laws. :)

Some of it comes from practical experience, through which I have had discussions with quite a few lawyers and civil servants. The rest is from reading a variety of sources, official and unofficial.
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Re: Resignation before fixed term contract ends?

Postby Abacus » 03 May 2016, 22:18

yyy wrote:
Abacus wrote:We are not even talking about the same thing. If you quit like the OP wants to you get no severance. Correct me if I am wrong about that.

If you file a complaint that the company has a couple of minor labor law violations then the MOL is going to give the company a chance to correct these issues. They don't immediately jump to immediate contract termination and severance pay.

Iirc the question was about whether or not the employee can get in trouble for quitting when the contract has a fixed term and no clause to allow the employee to quit, and the period of service does not exceed three years. My point is that if the employee quits by performing an Art. 14 termination, he can't get in trouble (unless the company reports him for being awol, but in the end he will prevail as long as he can prove the termination was valid).

If you want to quit using Art. 14, you don't do it by filing a complaint. You do it by quitting (giving the employer immediate notice of the fact that you're quitting and your reason(s) for doing so). If the employer refuses to co-operate, then you file a complaint, and in the end it will be affirmed that the contract was terminated on the day you terminated it. If you don't want severance pay, you don't need to pursue it.


Please answer the question. Does an employee that quits (his choice) get severance pay?
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Re: Resignation before fixed term contract ends?

Postby yyy » 03 May 2016, 23:46

Abacus wrote:
yyy wrote:
Abacus wrote:We are not even talking about the same thing. If you quit like the OP wants to you get no severance. Correct me if I am wrong about that.

If you file a complaint that the company has a couple of minor labor law violations then the MOL is going to give the company a chance to correct these issues. They don't immediately jump to immediate contract termination and severance pay.

Iirc the question was about whether or not the employee can get in trouble for quitting when the contract has a fixed term and no clause to allow the employee to quit, and the period of service does not exceed three years. My point is that if the employee quits by performing an Art. 14 termination, he can't get in trouble (unless the company reports him for being awol, but in the end he will prevail as long as he can prove the termination was valid).

If you want to quit using Art. 14, you don't do it by filing a complaint. You do it by quitting (giving the employer immediate notice of the fact that you're quitting and your reason(s) for doing so). If the employer refuses to co-operate, then you file a complaint, and in the end it will be affirmed that the contract was terminated on the day you terminated it. If you don't want severance pay, you don't need to pursue it.


Please answer the question. Does an employee that quits (his choice) get severance pay?

Technical answer: If the LSA applies, and the employee's termination of the contract is in conformity with Art. 14 (i.e. the employee serves appropriate notice to the employer that the termination is occurring due to the existence of one of the situations listed in Art. 14 Par. 1, and the situation truly does exist, Subpar. 1 and 6 being subject to the proviso of Par. 2 and Subpar. 2 and 4 being subject to the proviso of Par. 3), then Par. 4 makes Art. 17 applicable mutatis mutandis, which means the employer must pay severance pay (and if the employee is Taiwanese or married to a Taiwanese, the Labor Pension Act's "new system" may apply instead, which is basically 50% of the LSA severance pay).

Easy answer: If your boss screws you, you can quit and get severance pay, though not all types of screwing are equally valid.

Clear enough? :)
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Re: Resignation before fixed term contract ends?

Postby Abacus » 05 May 2016, 22:32

yyy wrote:Technical answer: If the LSA applies, and the employee's termination of the contract is in conformity with Art. 14 (i.e. the employee serves appropriate notice to the employer that the termination is occurring due to the existence of one of the situations listed in Art. 14 Par. 1, and the situation truly does exist, Subpar. 1 and 6 being subject to the proviso of Par. 2 and Subpar. 2 and 4 being subject to the proviso of Par. 3), then Par. 4 makes Art. 17 applicable mutatis mutandis, which means the employer must pay severance pay (and if the employee is Taiwanese or married to a Taiwanese, the Labor Pension Act's "new system" may apply instead, which is basically 50% of the LSA severance pay).

Easy answer: If your boss screws you, you can quit and get severance pay, though not all types of screwing are equally valid.

Clear enough? :)


I am glad that we are in agreement that a minor labor law infraction can't immediately terminate a contract.
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Re: Resignation before fixed term contract ends?

Postby yyy » 05 May 2016, 23:03

Abacus wrote:
yyy wrote:Technical answer: If the LSA applies, and the employee's termination of the contract is in conformity with Art. 14 (i.e. the employee serves appropriate notice to the employer that the termination is occurring due to the existence of one of the situations listed in Art. 14 Par. 1, and the situation truly does exist, Subpar. 1 and 6 being subject to the proviso of Par. 2 and Subpar. 2 and 4 being subject to the proviso of Par. 3), then Par. 4 makes Art. 17 applicable mutatis mutandis, which means the employer must pay severance pay (and if the employee is Taiwanese or married to a Taiwanese, the Labor Pension Act's "new system" may apply instead, which is basically 50% of the LSA severance pay).

Easy answer: If your boss screws you, you can quit and get severance pay, though not all types of screwing are equally valid.

Clear enough? :)


I am glad that we are in agreement that a minor labor law infraction can't immediately terminate a contract.

I didn't say that. For the employer to use Art. 12 on the basis of a violation, it needs to be a major violation ("違反勞動契約或工作規則,情節重大者"). For the employee to use Art. 14 on the basis of a violation, there's no "major" proviso. All that's needed is a situation in which "雇主違反勞動契約或勞工法令,致有損害勞工權益之虞者" lit. "the employer violates the labor contract or labor laws/regulations, resulting in fear of harm to the worker's rights and interests". I have dealt with this in real life, and the labor department upheld the employee's use of Art. 14 on the basis of proof that the employer violated the LSA, though there was no need to ask the department to confirm the violations in advance.

With Subpar. 6, there is no need for the employee to give the employer a chance to rectify the situation (unlike Subpar. 3, health & safety issues), though there is a 30 day time limit from the day the employee becomes aware of the situation.

If the employer underpays the employee (Subpar. 5), there is no time limit. (It stands to reason that underpayment ceases to be a valid reason once the debt is cleared.)

I don't know of any case in which a court deemed a violation too small to make Art. 14 applicable. If you know of such a case, please share.
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