Click here to go to our new forums at http://tw.forumosa.com
If you are a Forumosan Regular, when you log in for the FIRST TIME, you must RESET your password by using the Password Recovery system.

Usernames on the new forums must not contain any SPACES and must end with LETTER or a NUMBER; if yours does, you will be prompted to change your Username
Contact us at admin(at)forumosa(dot)com or @forumosa on Twitter or on our Facebook Page if you have any questions or problems logging back in

Obtaining Severance Pay

Work Permits, Employment Qualifications, Employer Problems
Forum rules
While the moderators are happy to help point people in the right direction for legal assistance and to attempt to keep these forums civil and tidy, please bear in mind that an Internet forum is not the place for providing or receiving legal advice or for the creation of any attorney-client privileges or obligations. Also keep in mind that Forumosa and the moderators cannot conduct comprehensive reviews of all laws or legal concepts referenced or discussed within these forums – laws and regulations are updated and amended, interpretations do change, and sometimes the legal landscape can change very fast. Forumosa provides these legal forums for general informational purposes only. By using these legal forums, you agree that the information does not constitute legal or other professional advice and no attorney-client or other relationship is created between you and any other posters on these forums. DO NOT CONSIDER THE FORUMS TO BE A SUBSTITUTE FOR OBTAINING LEGAL ADVICE FROM A QUALIFIED LICENSED ATTORNEY.

Obtaining Severance Pay

Postby winterfritz » 01 Jul 2016, 12:19

Hi all,

I need some advice on how to force an employer to pay me my severance pay.

I've worked at a small English buxiban in Taipei for nearly two years. Recently the boss terminated my contract. They didn't mention anything about severance pay. When I looked at my contract and the Labor Standards Act, I discovered I was legally entitled to a substantial sum, that was proportional to the length of time I had been employed at the school. I notified my boss and he got angry. Then I was contacted by the company's general manager - a separate person to my boss at the school. I was persuaded to attend a meeting with my boss and the general manager to discuss the severance. At the meeting they produced a printout in Chinese from what looked like a website for calculating Taiwanese severance pay, with a figure for the severance pay that was significantly lower than what I had been expecting. They explained that this was because severance was calculated from the starting date of the contract being terminated; although I had worked at the school for almost two years, my contracts were only for one-year stretches. Thus I had completed one year long contract and been terminated towards the end of the second, and they claimed that only the time in the second contract counted towards calculating severance pay. The figure on this printout was circled, and the general manager then scrawled 'we agree to this severance pay' and signed and dated the paper with a ballpoint pen. I was then pressured into signing the same piece of paper. We did the same thing with another identical copy of the printout, which was given to me.

I have since discovered that they were lying - severance pay IS calculated from the TOTAL length of time worked at the company, not just from the single yearly contract being cut short. So according to my original contract and the Labor Standards Act, I should get a lot more than the sum specified on the printout I have. I have requested a mediated meeting at the Labor Department in City Hall to try and get this larger sum.

My question is: which is more important in determining what the company should pay me - the printout that I and the general manager agreed to and signed, or my original work contract plus the Labor Standards Act? It's true I signed the printout with the lower sum. But if they lied and intimidated me into signing it, does it count? (It was a pretty nasty meeting.) And would a printout of a smaller figure, with 'we agree to this sum' and two signatures written on it, override my original work contracts, which clearly state that I can only be dismissed in accordance with the Labor Standards Act? I've seen mention on these forums of some people using the Labor Standards Act to get severance pay even after they had signed contracts saying they weren't entitled to it, or were entitled to less. Is this possible? Or am I just screwed?

I would also be interested in hearing any stories of English teachers' severance pay disputes settled by Labor Department mediation. Is this an effective method? What are the mediators like? Are rulings consistent, or is it a crapshoot? Do companies often abide by the rulings?

Thanks in advance.
winterfritz
Ink Still Wet in Passport (shífēn xīnshǒu)
Ink Still Wet in Passport (shífēn xīnshǒu)
 
Posts: 4
{ AUTHOR_TOPIC }
Joined: 01 Jul 2016, 11:29



Re: Obtaining Severance Pay

Postby Rotalsnart » 04 Jul 2016, 13:35

If the contract (printout) that you signed is less favorable to you than your entitlement under the Labor Standards Act, the contract is invalid, even though you signed it. You can explain that to your boss and general manager, and if they still won't pay you what you are entitled, let them know that you will be visiting the Ministry of Labor to ask for their assistance in claiming your rightful severance pay.
Rotalsnart
Eldest Grandchild (zhǎngsūn)
Eldest Grandchild (zhǎngsūn)
 
Posts: 1125
Joined: 26 Oct 2005, 23:06



Re: Obtaining Severance Pay

Postby winterfritz » 07 Jul 2016, 16:50

Thanks for the advice Rotalsnart. I was hoping that was the case.

I'd still be interested to hear about any pay disputes resolved (or not) by the Labor Department.
winterfritz
Ink Still Wet in Passport (shífēn xīnshǒu)
Ink Still Wet in Passport (shífēn xīnshǒu)
 
Posts: 4
{ AUTHOR_TOPIC }
Joined: 01 Jul 2016, 11:29



Re: Obtaining Severance Pay

Postby Abacus » 07 Jul 2016, 18:10

It seems very likely that you can win the severance case. The signed paper could make it interesting though. Something like that should be illegal and fineable but they might have gone through a lawyer. Let us know how it turns out.
Abacus
National Security Advisor (guójiā ānquán gùwèn)
National Security Advisor (guójiā ānquán gùwèn)
 
Posts: 4654
Joined: 20 Aug 2009, 08:14
Location: Kaohsiung



Re: Obtaining Severance Pay

Postby yyy » 07 Jul 2016, 21:59

winterfritz wrote:The figure on this printout was circled, and the general manager then scrawled 'we agree to this severance pay' and signed and dated the paper with a ballpoint pen. I was then pressured into signing the same piece of paper. We did the same thing with another identical copy of the printout, which was given to me.

My question is: which is more important in determining what the company should pay me - the printout that I and the general manager agreed to and signed, or my original work contract plus the Labor Standards Act? It's true I signed the printout with the lower sum. But if they lied and intimidated me into signing it, does it count? (It was a pretty nasty meeting.) And would a printout of a smaller figure, with 'we agree to this sum' and two signatures written on it, override my original work contracts, which clearly state that I can only be dismissed in accordance with the Labor Standards Act? I've seen mention on these forums of some people using the Labor Standards Act to get severance pay even after they had signed contracts saying they weren't entitled to it, or were entitled to less. Is this possible? Or am I just screwed?

"Settlement and compromise" is a real thing in the Civil Code, i.e. you can waive a claim in exchange for something, even if you were already entitled to that thing. However, there are also provisions for juridical acts (such as signing settlements) being invalidated for this or that reason. A proper settlement is supposed to be ironclad, i.e. you don't even need to file a lawsuit to get it enforced, but a proper settlement for a labor-management dispute is supposed to be reached through mediation by an approved neutral party (the labor department, a mediator approved by the department, or a court appointed mediator), in accordance with laws & regulations outside the Civil Code. I don't know of any case like this, but the fact that they didn't follow the proper procedure is a strong argument in your favor.

Btw, some people working directly or indirectly for the government still don't know (or pretend not to know -- and I'm not joking, unfortunately) that unmarried foreigners are not subject to the Labor Pension Act. Before your mediation session (which the labor department will schedule at your request), download the Labor Standards Act and the Labor Pension Act in English and Chinese and be ready to show the relevant articles to the mediator (Art. 7 of the LPA iirc). If the mediator happens to be among those who just don't get it, remember you don't need to accept the mediator's proposed settlement; if you don't settle, you can still go to court, if you have time.

A standard settlement includes a promise not to take any further action against the other party, so if you want to get them fined, ask the labor department to inspect the buxiban, before mediation. The department may be lazy and say the case is already settled, but if 30 days passed between the termination (the actual termination date not the notice date) and the payment, the buxiban should have a problem. Also look through the LSA for other possible violations. They may owe more (to you and/or the labor department) than you think.

One more thing, did they give you a 服務證明書 "proof of service record" saying when you started and finished working for them? If not, ask for it before they find out you're taking further action.
yyy
Newspaper Copyeditor (bàoshè biānjí)
Newspaper Copyeditor (bàoshè biānjí)
 
Posts: 413
Joined: 26 Oct 2014, 17:07
Location: Taipei



Re: Obtaining Severance Pay

Postby winterfritz » 08 Jul 2016, 17:23

yyy wrote:Btw, some people working directly or indirectly for the government still don't know (or pretend not to know -- and I'm not joking, unfortunately) that unmarried foreigners are not subject to the Labor Pension Act. Before your mediation session (which the labor department will schedule at your request), download the Labor Standards Act and the Labor Pension Act in English and Chinese and be ready to show the relevant articles to the mediator (Art. 7 of the LPA iirc). If the mediator happens to be among those who just don't get it, remember you don't need to accept the mediator's proposed settlement; if you don't settle, you can still go to court, if you have time.


Thanks for clarifying this. This is in fact the other way in which the company is trying to cheat me - they used the LPA to calculate the severance, giving a sum that is half of what the LSA guarantees. Together with the fact that they are counting less than half of my actual service period it means that they're only offering around a quarter of what I'm entitled to under the LSA.

I have prepared copies of the relevant parts of the LSA and LPA in English and Chinese as you have advised. (Yup, it is article 7 of the LPA). Hopefully I'll get lucky with the mediator - although I understand that I can ask to meet with the mediator before the meeting; is this correct?

In any case, my contract clearly states, in English and Chinese, that I am to be dismissed 'in accordance with the Labor Standards Act' rather than the LPA.
winterfritz
Ink Still Wet in Passport (shífēn xīnshǒu)
Ink Still Wet in Passport (shífēn xīnshǒu)
 
Posts: 4
{ AUTHOR_TOPIC }
Joined: 01 Jul 2016, 11:29



Re: Obtaining Severance Pay

Postby winterfritz » 08 Jul 2016, 17:35

yyy wrote:One more thing, did they give you a 服務證明書 "proof of service record" saying when you started and finished working for them? If not, ask for it before they find out you're taking further action.


They gave me a 離職證明書 which I'm guessing is the same thing. The only trouble is that the dates are wrong. The 'start date' listed is the start of the contract being terminated ie last year, rather than the date I started working at the school two years ago. I'm guessing they did this so as to back up their bogus calculation of the severance pay. The end date is also wrong, about two weeks prior to the actual date on the termination agreement.

How necessary is a correctly dated 服務證明書? I already have originals of my two consecutive work contracts, which clearly give the date at which I started at the company, as well as the termination agreement that I signed and they stamped at the meeting last week, which gives my end date.

On the other hand, can I use the incorrectly dated 服務證明書 to argue that they have already violated the LSA? I notice that Article 19 states they cannot refuse a request for a 服務證明書. Furthermore, the incorrect 服務證明書 has a declaration that 'the above information is true to our knowledge,' and has been stamped by the organization. Are there penalties for lying on a document like this?
winterfritz
Ink Still Wet in Passport (shífēn xīnshǒu)
Ink Still Wet in Passport (shífēn xīnshǒu)
 
Posts: 4
{ AUTHOR_TOPIC }
Joined: 01 Jul 2016, 11:29



Re: Obtaining Severance Pay

Postby yyy » 10 Jul 2016, 10:41

winterfritz wrote:I have prepared copies of the relevant parts of the LSA and LPA in English and Chinese as you have advised. (Yup, it is article 7 of the LPA). Hopefully I'll get lucky with the mediator - although I understand that I can ask to meet with the mediator before the meeting; is this correct?

In any case, my contract clearly states, in English and Chinese, that I am to be dismissed 'in accordance with the Labor Standards Act' rather than the LPA.

It never occurred to me to ask about that :ponder: . It shouldn't be necessary, but I guess it doesn't hurt to try. Either way, get a lot of patience ready. If the employer is trying to play a "long game", the mediation will turn out to be a complete waste of time (but still necessary before going to court).

In general, the mediators who work directly for the government are more useful than the outsourced ("civil society") ones; the catch is that you need to wait longer.
winterfritz wrote:They gave me a 離職證明書 which I'm guessing is the same thing. The only trouble is that the dates are wrong. The 'start date' listed is the start of the contract being terminated ie last year, rather than the date I started working at the school two years ago. I'm guessing they did this so as to back up their bogus calculation of the severance pay. The end date is also wrong, about two weeks prior to the actual date on the termination agreement.

How necessary is a correctly dated 服務證明書? I already have originals of my two consecutive work contracts, which clearly give the date at which I started at the company, as well as the termination agreement that I signed and they stamped at the meeting last week, which gives my end date.

On the other hand, can I use the incorrectly dated 服務證明書 to argue that they have already violated the LSA? I notice that Article 19 states they cannot refuse a request for a 服務證明書. Furthermore, the incorrect 服務證明書 has a declaration that 'the above information is true to our knowledge,' and has been stamped by the organization. Are there penalties for lying on a document like this?

The administrative penalties are all listed in the "Penal Provisions" Chapter near the end of the LSA, and you may find that the city has its own detailed list of how much to charge for an employer's 1st violation, 2nd violation, etc. Iirc Art. 19 is one of the general violations in Art. 79 ($20,000 to $300,000), but the standards for a 服務證明書 or 離職證明書 are not firm. A case of blatant fraud would probably result in a penalty, but a case of "oh sorry we made a mistake :lol: ", probably not :roll: . You can ask them to issue a correction with the proper dates, and if they refuse, that'll be more ammunition :wink: .
yyy
Newspaper Copyeditor (bàoshè biānjí)
Newspaper Copyeditor (bàoshè biānjí)
 
Posts: 413
Joined: 26 Oct 2014, 17:07
Location: Taipei



Re: Obtaining Severance Pay

Postby kaikai34 » 10 Jul 2016, 23:02

Damn, that's some shady ass shit. Best of luck dude.
User avatar
kaikai34
Fried Chicken-Parts Vendor (yán sū jī xiǎofàn)
Fried Chicken-Parts Vendor (yán sū jī xiǎofàn)
 
Posts: 916
Joined: 13 Apr 2008, 20:32



FRIENDLY REMINDER
   Please remember that Forumosa is not responsible for the content that appears on the other side of links that Forumosans post on our forums. As a discussion website, we encourage open and frank debate. We have learned that the most effective way to address questionable claims or accusations on Forumosa is by engaging in a sincere and constructive conversation. To make this website work, we must all feel safe in expressing our opinions, this also means backing up any claims with hard facts, including links to other websites.
   Please also remember that one should not believe everything one reads on the Internet, particularly from websites whose content cannot be easily verified or substantiated. Use your common sense and do not hesitate to ask for proof.




Return to Legal Issues at Work



Who is online

Forumosans browsing this forum: No Forumosans and 0 guests