Validity of penalty clauses for breaking contract

i have relocated to another country
before my departure i was 10 months into a 1 year contract,and several occurance of “bad deals” came to my attention regarding my employer and previous employees, so i was advised to leave on payday.

i did,and half surprinsingly my wage for october wasn’t on my account.

are employers entitled to hold and not pay staff for a month that has been worked.
:help:

Oh, you’re gone already? Your stay in taiwan was only short lived … never had the chance to meet you … and try your cooking.

I guess everything goes in taiwan … when it comes to not paying employees …

A brief summation of the law as I sees it: They can fine you for not filling the contract. I think (maybe) the fine can be up to 20hrs.

They can not hold pay (deposit) before you do anything bad. They can only take $ out of your last pay, not your first ones.

If you were here you could fight it and probably win, but “I was advised to leave on payday” means you should have had your $ in hand before you left. That way your only out a week not a month’s pay.

I am assuming that you were advised by other teachers and not by the school. Bad advice if you ask me, and it seems that had you checked this before you did the runner rather than after the fact then you may have made a different decision. While I can understand your motivations for doing a runner I am not sure that you have acheived your objectives.

First off, and you may not yet be aware of this, but your employer is required to notify the CLA of your premature departure. The CLA will automatically blacklist you from ever obtaining a work permit to teach in Taiwan ever again. While this may not be a concern for you at present it is probably best for others not to limit their options in this regard as the return of those who never planned to return is not unheard of occurence.

The blacklisting can be appealed but the only basis of the appeal after the fact would be proving that you did give more than 30 days notice of your intent to leave. If your employer was treating you badly, forcing you to work illegally, or threatening not to pay you then you should have raised these concerns with the CLA prior to you choosing to breach the contract. Once you have breached the contract yourself then these other concerns become nothing more than a case of ‘he says, she says’.

What does you contract say about this?

Most of us have a clause regarding contract breach that states a penalty for breaching the contract. We agree to this when we sign the contract. It is not unheard of for schools to forgo the levying of this penalty if the teacher works with school in finding a replacement, but then there are also cases of schools taking the full penalty even though there were legitimate reasons for a breach (i.e. death of a family member back home etc). Penalizing the party that breaches a contract is pretty standard practice and totally legal and not something that is restricted to the employment contracts of foreign teachers.

All very good Brian, but I believe the OP was a chef rather than a teacher.

it’s ok,even so he did point me out to some interesting details,in my contract there are no part about breaking contracts,so i’m not sure where that leaves me.

the day i left they indeed contacted immigration and police station,altough this all sounds dramatic,it seems like standard procedure.

i’m not really bothered about being black listed, we should never say never but i’m fairly confident that i won’t need to get back to taiwan again.

as probably anyone else, i’m not keen on working a whole month for free, so i hope they will resolve this in a good manner.

thanks for the contributions :wink:

[quote=“belgian pie”]Oh, you’re gone already? Your stay in taiwan was only short lived … never had the chance to meet you … and try your cooking.

I guess everything goes in taiwan … when it comes to not paying employees …[/quote]

yeah,shortly after i arrived to taiwan i thought i’d be able to come and sample some proper belgian delights and it turned out that you were no longer operating that shop, now it’s my turn…we both know the deal about taiwan…
anyhow i’ll keep posting here anyway since this MB is much more than just about taiwan.

i’ll PM you my new whereabouts so one day you might still want to come and visit :wink:

Tête de merde d’au revoir… :smiley:

[quote=“Chicken”]A brief summation of the law as I sees it: They can fine you for not filling the contract. I think (maybe) the fine can be up to 20hrs.

[/quote]

oh,so that’s only a 10th of what i’m owed :laughing: :smiley:

[quote=“Chicken”]

If you were here you could fight it and probably win, but “I was advised to leave on payday” means you should have had your $ in hand before you left. That way your only out a week not a month’s pay.[/quote]

see,that’s where it’s all very confusing, we always got paid on the 6th in that company,the pay is usually wired on staff’s accounts the 6th early morning(sometime even at 00.01 on the day) but that morning i didn’t received anything until my plane was to leave around noon.
i then contacted other staff members who told me they had their pay wired as usual,so i was indeed the only one to get shafted.

someone could correct me if i am wrong but, aren’t wages arrangements made a few days in advance?i mean,the financial dept of a workplace doesn’t actually make payments to employee’s accounts the very morning on payday???do they??

if it’s all made in advance,then it prove that they were aware of my intensions

almost…like everything you do… :smiley: :laughing:

Oops :blush: I sometimes forget that there is a whole other world outside of the domain of the English teacher in Taiwan!

Nevertheless, much of what I have written above should still apply.

It raises an interesting question however. In the case of teachers you are blacklisted from ever getting a work permit to teach again, but does that affect your ability to get any work permit or only a work permit to teach? Likewise is a chef banned from being a chef in Taiwan ever again but allowed to obatin other work permits?

I assume that it is a total ban, but maybe not!

No. They are not allowed to withhold pay or make any penalty deductions. They should have paid you in full.

No. They are not allowed to withhold pay or make any penalty deductions. They should have paid you in full.[/quote]

Blackadder please point out the legislation that prohibits employers from levying penalties for contract breach.

I think that we have pretty conclusively shown that employers are entitled to levy any penalty that is contained in the contract but if you have something to offer then please feel free to explain more clearly.

I can’t. I wouldn’t know where to look. I am also aware that you know the law fairly well and that my statement doesn’t fit with your interpretation of the law.

I would have agreed with you. But a few months back, I paid for a consultation with an employment lawyer (about a similar situation) and I received the following advice (the wording is mine, not hers):

  1. employees are entitiled to be paid for work done in full, and employers cannot withhold pay.

  2. if there are penalty clauses in the contract, they cannot be deducted from the final pay check (only money that has been lent to the employee can be deducted). However, the employer can sue to try and get the penalty money back (at a later date) and employers often use the contract as evidence of prior agreemement. The lawyers then get paid to squabble about which clauses are fair and how much everyone has to pay up. In reality this rarely happens because it’s an expensive process.

It is possible she is wrong - but I would hope not as she isn’t cheap! If so, I apologise for passing on incorrect information.

No. They are not allowed to withhold pay or make any penalty deductions. They should have paid you in full.[/quote]

Blackadder please point out the legislation that prohibits employers from levying penalties for contract breach.

I think that we have pretty conclusively shown that employers are entitled to levy any penalty that is contained in the contract but if you have something to offer then please feel free to explain more clearly.[/quote]

in this thread?
i’m yet to see a link to anything official

i still didn’t get paid anything,so if anyone knows a lawyer that i can approach,pls let me know.

BlackAdder: The difference between your 2 posts is very important and helps explain why you feel put out by brian’s follow up post. In your first post you did not add to the discussion at all, you merely said we were wrong.
In your second post you said that same thing (that we were wrong) but you provided reference and personal experience to show why you felt that way. This was a much better post.
I often forget this difference myself. I should add that in my first post that was from my own experience as a teacher. Remember teachers and others have different rules.

[quote]BlackAdder: The difference between your 2 posts is very important and helps explain why you feel put out by brian’s follow up post. In your first post you did not add to the discussion at all, you merely said we were wrong.
In your second post you said that same thing (that we were wrong) but you provided reference and personal experience to show why you felt that way. This was a much better post. I often forget this difference myself. [/quote]

Chicken & Brian: It appears I gave the impression I was ‘put out’. Truly, I wasn’t. With hindsight I appreciate that my first post didn’t help shed any quality light on the situation - my oversight. :blush: Thanks for being civil about it.

Chicken: Good point. I wasn’t aware there were any differences - which might help explain why everyone has a different take on this.

Dablindfrog: I will do my best to find and PM the contact details of the lawyer I spoke to. In the meantime, I suggest you contact the labor office and see if they can put you in touch with someone that can confirm your rights (for free). I don’t wish to raise your hopes or encourage you to waste your money on lawyers as I may have been given duff info, or info not related to your profession. Good luck.

[quote=“BlackAdder”]

  1. employees are entitiled to be paid for work done in full, and employers cannot withhold pay.

  2. if there are penalty clauses in the contract, they cannot be deducted from the final pay check (only money that has been lent to the employee can be deducted). However, the employer can sue to try and get the penalty money back (at a later date) and employers often use the contract as evidence of prior agreemement. The lawyers then get paid to squabble about which clauses are fair and how much everyone has to pay up. In reality this rarely happens because it’s an expensive process. [/quote]

The law on the matter is ambiguous in my opinion, but what the lawyer told you could certainly be correct, but then a lawyer on behalf of the school would also have a very valid argument to the contrary in my opinion.

The law protects the rights of employers to include penalties for breach of contract. The law also states that employers cannot make ‘advance’ deductions from employees wages to prevent breach. What is not clear is what the word ‘advance’ means in this context.

Does it mean:

a) in advance of breach (i.e. bonds and deposits levied even before a breach has occured), or
b) in advance of payment to the employee.

Although a costly court battle could probably get to the bottom of this and set a precedent on the matter, I think that the answer for our purposes lies in the initial reason for inclusion of that clause in the law.

We all know that bonds and deposits are illegal and that foreign blue collar workers are particularly vulnerable to unscrupulous agents and employees in this regard. It is my belief that this vulnerability is the reason for this clause in the law in the first place.

I believe that your lawyer is taking the other opinion that the law intends to prevent any form of advance deduction from an employees wages. However if his point of view was correct, then surely it could be argued that tax, health insurance and retirement salary deductions, as well as the routine staff travel and ‘weiya’ deductions of local staff are also illegal. There are any number of pre-payment deductions that employers and employees agree upon in an employment contract or verbally, and if as your lawyer suggests, all pre-payment deductions are illegal, then that would make these illegal also. I concede that it is a valid argument, but as I have stated above I don’t believe that it fits with the intent of the law.

So rather than argue the intricacies of the legislation endlessly I really think that the best advice to give foreigners in Taiwan is that if you sign a contract with a breach penalty stated in the contract then you should accept that if you breach then you will have to pay that penalty – regardless of whether the employer takes it out before paying you, or whether you are required to hand it back after receiving it. We are all adults and we are all clear on exactly what the breach agreement means so let’s not try and weasel our way out of it or we may find that our employers also feel justified in trying to weasel their way out of things also.

I agree with this bit of advice.

With regard to the legalities, I don’t know the law well enough to add anything extra to what I was told.

Rgds
BlackAdder

[quote=“brian”]

So rather than argue the intricacies of the legislation endlessly I really think that the best advice to give foreigners in Taiwan is that if you sign a contract with a breach penalty stated in the contract then you should accept that if you breach then you will have to pay that penalty – regardless of whether the employer takes it out before paying you, or whether you are required to hand it back after receiving it. We are all adults and we are all clear on exactly what the breach agreement means so let’s not try and weasel our way out of it or we may find that our employers also feel justified in trying to weasel their way out of things also.[/quote]

of course,if it’s in the contract,there’s no way to argue,

in this case,there are no penalties in my contract

where do you draw a line?if they asked me my past 10 months salary back,would this be ok?

i think not…then why 1 month is ok?