Help! In desperate need of legal advice

Legal Legal - Work
1

Ok here goes.

Last Thursday I was fired by text message from my buxiban with immediate effect after working there three years. The reason being I refused to teach a 3 year old in my reading class, the other children being 5 or 6. My ex-boss has refused to pay any severance pay, or enter into any negotiation with regards to compensation.

After visiting Labor Affairs here in Tainan I was told I could request an arbitration meeting in which she would be required to attend. However The Foreign Workers Inspector and one of the three members of the arbitration panal has since stated that under Article 12 of the Labor Standards Act

“any employer may terminate an agreement without advance notice if the worker…is in serious violation of the work rules.”

Now I know that he has been in contact with my ex-employer and his demeanor changed quickly with me as a result. He told me it wasn’t illegal for foreigners to teach kindergarten students and even suggested that I ‘hadn’t been entirely honest’. In short I’m concerned about not getting a fair hearing, especially as I have no idea as to what to expect.

I’ve heard about and read lots of articles about how it is illegal for foreigners to teach kindergarten students, and always assumed it is true, but I need to know where in Taiwanese law it actually says that this not allowed.

To complicate matters further before I was fired my new visa was sent off to Taipei to be renewed. My A.R.C. runs out on Oct 31st and I don’t think my old school is willing to give me a release letter, so I can start working at a new school. My new boss is obviously reluctant to process my new visa until this is cleared up and is a little unsure about processing a visa without this release letter.

If anyone has information about, arbitration, the actual laws regarding foreigners teaching kindergarten students, what to do in the case of a previous school refusing to sign a release letter and the transfer of A.R.C.s to my new school or any advice at all regarding
any of this, please post a reply or e-mail me on chrisknightie@gmail.com or phone me on 0938500422

Thanks in advance

Chris Knight

2

Hi seabiscuit,

I can’t give legal advice, but I can post a few links that I hope will get you started getting information.

In October of 2003, the website Tealit posted an article saying the Ministry of Education had “announced that as of October 1st, 2003, foreign teachers are no longer allowed to teach in kindergartens. . . .” The Tealit article is here: tealit.com/news.htm

The article links to what it says is a scanned copy of “a pair of published orders” forbidding foreigners from teaching kindergarten. The scanned document which Tealit claimed to be the copy of the “pair of published orders” is here: tealit.com/tn.october12003.htm

Recently the newspapers have reported that the legislature here is considering an amendment to the Supplementary and Continuing Education Act (I think that’s what it’s called in English) that would forbid allowing children under six to attend buxibans. If a law is being considered to bar children under six from attending buxibans, then it would seem to imply that children under six may currently attend buxibans. There has been discussion of this proposed bill on this board. The discussion is here: forumosa.com/taiwan/viewtopi … 29&start=0

There has also been discussion on this bulletin board about the issue of whether foreigners may teach children under six years old, with some members seeming to say that it is not allowed and others seeming to say that it is allowed. Here are a few links to examples of discussion, on this board, of the issue of teaching young children (under six, under seven, or as the case may be):

forumosa.com/taiwan/viewtopi … 88#p509188
forumosa.com/taiwan/viewtopi … 79#p777779
forumosa.com/taiwan/viewtopi … 19#p286219
forumosa.com/taiwan/viewtopi … 94#p562194

The issues are pretty confusing.

I know this doesn’t help much, but I hope someone will come along who can give you guidance.

Take care and good luck.

3

Another question – where are the work rules? If you’re in violation of them, then they should be able to produce them and show that you had been given a copy or at least oriented as to their content.

Long shot but logical (which doesn’t always hold water here, but anyway…)

A little preliminary Googling in Chinese so far is showing hits for foreigners not being able to teach kindy, and for kids under six not being allowed to study English in buxibans. I suppose it might be technically legal for a kid under six to study English in a non-buxiban setting, or for a foreigner to teach a kindy-aged kid but not in a kindy? Again, wild speculation, but Taiwan is “loopholes ‘R’ us” when it comes to this sort of thing. Plus, of course, whatever guanxi your employer enjoys.

I suspect the main issue is your refusal = loss of face to the boss/organization. Flat-out refusals are problematic within organizations. Failure to do a good job while “complying” is usually more politic internally, but of course if you’re concerned about being deported for illegal teaching, I can see your point. The buxiban probably wouldn’t, though.

4

Can’t offer much but say good luck to you, the treatment of workers sucks big time here. Keep fighting your case as the law and interpretation is unclear. Show you are willing to fight, bring documents supporting illegal to work in kindy claim and at the least you should get your release letter soon. Probably it can be settled by ‘saving face’ all round, you believed it was illegal to teach kindy and that’s why you refused to teach the 3 yr old. Be concilliatory on the fact that the boss wanted you to teach and you understand the commercial pressure but that it was impossible to manage different age groups and you thought it was illegal (you always have to give them wriggle room to save face). Get the release letter is your aim.

There is supposed to be severance of one month for every year worked in Taiwan, if you are fired you are supposed to be able to claim this (not sure in case of this dismissal) but you might have to give up on this to get the issue resolved quickly and move on, let the boss know that you won’t look for this if he gives you the release letter…I don’t think you have much chance to get it anyway due to the ambiguity of the situation and non-sympathy of labour affairs and notorious stinginess of Taiwanese bosses, it will drag on…

5

You should absolutely go to the arbitration hearings and insist that you get your three months of severance pay.

Termination for violation of work rules is rare. The work rules must be written and the employer able to show that he gave them to you. It’s very rare for a small business to be that organized. In your case, it would reasonable to insist that they be in English. Even if they have work rules, I seriously doubt that they cover the situation where you refuse a teaching assignment. See Article 70 of the Labor Standards Act on Work Rules. Notice that the subject matter of the Work Rules does not cover your situation clearly.

The violation has to be serious. Obviously there is a lot of room for interpretation in that, but I would certainly argue it would need to be serious enough to disrupt the operations of the business. If you and the school had a difference on who you could teach, it could have easily been solved by mediation or having you not teach students of that age for a week or so until the issue was resolved. A serious violation would be more along the lines of showing up to work but refusing to reach anyone. Firing you without notice is under Taiwanese labor law a serious matter.

I don’t think you should rush to the conclusion that you will be treated unfairly by the arbitration panel. In general, they favor employees and making sure that severance pay is paid is a high priority.

After Labor Affairs receives a complaint, they conduct an ‘investigation’. That investigation consists of calling up the employer and getting his side of the story. So it is entirely normal that they have been in contact with your ex-employer and have heard his side of the story.

You need to ask your employer for the release letter. I suggest that you do so by registered mail. Follow up by calling and asking for your release letter and appearing in person at the school and asking politely for it.

If this fails, visit Labor Affairs again and ask for help in getting your release letter. Issuing a release letter is required.

When you go to the hearing, be straightforward about what happened. Unless you did something hideously wrong, you should be entitled to your severance pay. Calmly explain your side of the story in simple language. Print out the following two articles in Chinese and explain that friends had told you about them and you thought you could not teach kindergarten and that you would be deported if you did. These are articles that appeared in the last few weeks that discuss the situation with kindergartens and say that foreigners cannot teach in kindergartens. However, you may be teaching in a licensed buxiban (different license than a kindergarten) and buxibans can still enroll pre-school children at this point although the MORE appears to be getting ready to close this loophole.

Don’t argue the law with them. Just say that you honestly thought that you could not teach pre-school children and that you would be deported if you did. Appeal to the board’s sympathy by saying that as a foreigner who does not speak the language, it is easy for misunderstandings to arise about the law, especially when there are lots of news reports saying foreigners can’t teach in kindergartens.

Point out that this could have been discussed and worked out if your boss had not summarily fired you by text message instead of giving you advance notice which is required by law.

Note that you are not only entitled to three months of severance pay, but an additional 20 calendar days of pay because he terminated you without advance notice. See Articles 16 and 17 of the Labor Standards Act.

Here are the articles in Chinese:

mag.udn.com/mag/campus/storypage … _ID=217577
news.chinatimes.com/2007Cti/2007 … 66,00.html

There was also an article in the Taipei Times on this subject a few days after the second articlle here. I’l leave you to find it.

Please check your private messages.

6

Guys thanks for the replies, it really is a big big help.

There is one point that I forgot to mention. My contract that has been sent to Taipei, states that I was only working 16 hours a week and earning 16500 a month. In reality I worked 30 hours a week for 70 000 a month. I suspected that they were doing something like this but never really knew as I wasn’t given a copy of the contract that I signed.

I’m a fool I know but up to now maintained a reasonably good relationship with my school so I didn’t really check this side of things properly. For what it’s worth I pay 990nt tax on every pay check and at the end of the year it is the school that sorts out my tax certificate.

Anyways, thanks again for postings. Keep 'em coming.

Chris

7

[quote=“seabiscuit”]Guys thanks for the replies, it really is a big big help.

There is one point that I forgot to mention. My contract that has been sent to Taipei, states that I was only working 16 hours a week and earning 16500 a month. In reality I worked 30 hours a week for 70 000 a month. I suspected that they were doing something like this but never really knew as I wasn’t given a copy of the contract that I signed.

I’m a fool I know but up to now maintained a reasonably good relationship with my school so I didn’t really check this side of things properly. For what it’s worth I pay 990nt tax on every pay check and at the end of the year it is the school that sorts out my tax certificate.

Anyways, thanks again for postings. Keep 'em coming.

Chris[/quote]
Keep that stuff, Its gold in an arbitration setting. They’s a gonna get the broken broomstick up the rectum if you play your cards right.

8

If you worked there for 3 years and did your taxes, how did you not realise its only 16500?

so far…you taught in a place you’re not allowed to(kindy) and lied about earnings etc.

your boss can get a fine, you can get deported. Is the risk of being deported worth 120 000? Also, this wont be resolved within a week, it dragggggggggs on. If your boss knows your ARC is running out, he will make excuses and not show up to hearings till you have to leave.

9

As far as I understand, the number of hours on the contract is an estimate, generally on the low-end, to distinguish between a full-time or a part-time work permit. How many hours you actually work will vary. The important thing is that the actual amount you earned appears on your tax statement.

10

[quote=“seabiscuit”]Guys thanks for the replies, it really is a big big help.

There is one point that I forgot to mention. My contract that has been sent to Taipei, states that I was only working 16 hours a week and earning 16500 a month. In reality I worked 30 hours a week for 70 000 a month. I suspected that they were doing something like this but never really knew as I wasn’t given a copy of the contract that I signed.

I’m a fool I know but up to now maintained a reasonably good relationship with my school so I didn’t really check this side of things properly. For what it’s worth I pay 990nt tax on every pay check and at the end of the year it is the school that sorts out my tax certificate.

Anyways, thanks again for postings. Keep 'em coming.

Chris[/quote]

Tax Fraud… the TAx office would love to visit your school because if they are under reporting your income they are under reporting the number of students to the tax department. A school would be far more worried about the tax office than other government offices, especially when you say you teach 300 students not the 30 the school claims :smiley:

11

All I can add is that release letters are a thing of the past. You are allowed to work for up to three schools. You will need tax slips from your old school and that is all you need to apply for an ARC through another job. Release letter or not. This release letter came into play back when teachers were only allowed to work at one school. Not the case anymore. You are allowed to have up to three working permits now, and you only need one to process an ARC.

12

:bravo:

13

In the hope that everyone out there doesn’t have anything better to do on their Saturday nights or Sundays I have a question that is rather pressing and would really appreciate a response before I go to arbitration on Monday morning at 9 am.

For a more indepth look at my case please refer to the post, entitled “Help, In desperate need of legal advice” (my username is seabiscuit) Based on the advice given I’ve decided to go to arbitration.

I have been with my school for three years. The labor affairs people here in Tainan have recently told my interpreter that that under the Labor and Pensions Act I am entitled to six weeks of severance. Yet my understanding of The Labor and Pensions Act is that it refers to domestic workers only (i.e. only Taiwanese). Foreigners fall under the severance payments of The Labor Standards Act, which guarantees 3 months severance plus an extra 30 days. I have found some articles in English that seem to support this, yet nothing in Chinese. The main crux of their point seems to be that as I am entitled to the same laws as a Taiwanese and thus I should be treated as a Taiwanese citizen.

Does anyone know anything about this or even better have a link in chinese which shows them that foreigners fall under the Labor Standards Act? It’s also potentially tricky to present this, as I don’t want to be arguing the law with a bunch of lawmakers, so any advice on how to do this or indeed anything to do with arbitration hearing will be greatfully appreciated.

Free beer tokens to be cashed in at the Tainan bar of your choice to anyone who replies!

Thanks again.

Chris

14

Firstly I’d like to say a big thank you to everyone for their contributions on this thread. some of it was right. some of it was wrong. All of it was well intended.
I went to arbitration on Monday. I won. My boss was beaten early, a third round knock out by my reckoning. I got 155k. I was entitled to double this, but it was a very real concern that she would walk out of the meeting and it would go to a second round of arbitration where she would have some kind of representation that would do a far better job than she tried to do on her own. I’m pretty happy with the result, and it was worth it, just because my ex boss was told off by the city government and treated like a naughty six year old, which as i’m sure you can imagine was priceless.
If anyone goes through a similar situation feel free to call me (Chris 0938 500422). Once again, thanks again for posting and helping me out of my hole. Beer tokens on request.
Chris

15

:bravo: Well done! Way to see it through and not give up!

16

Congratulations! :bravo:

17

jammy bastard

18

Congrats!!! :discodance: :bravo:

19

Good to hear it!