On Penalty Clauses and Termination Letters

Legal Legal - Work
1

The school where I have worked for the last six months, in New Taipei City, just made it quite difficult for me to leave yesterday, both figuratively and literally. Over the lunar New Year break, I had accepted an offer from a different school, and within a day of that acceptance I emailed a resignation letter to my supervisor. I had gone into the school to return any textbooks I still had, make sure they understood my departure, and handle some important details. Those included getting the account number where I was to wire the agreed amount for the penalty clause in my contract and a termination letter.

Yes, my former school had a penalty clause which said I would need to pay one month’s salary back to them if I do not a) give them 30 day’s notice, or b) fulfill all of their “leaving the school” items on their list. That would have meant getting stamps from over 20 people in different departments, and they were not available on the day I had gone in to see the supervisor, which was still during the lunar New Year break.

My new employer requested a termination letter. So one of my questions for everyone here is this - is a termination letter something that the new employer needs legally to hire me? Does the old employer need to be informed of who the new employer is in order to write a termination letter?

Now, the plot did thicken while I was there at the school. My conversation with my old supervisor became hot, with her asking me where I was going to work, which made me uncomfortable, and raising her voice, so I proceeded to walk out and go down to HR for the bank account number. As I went down the stairs, the other supervisor started yelling after me "where are the books? where are the books? Those were left behind on the table where I had just been talking to the first supervisor. Once in HR, I explained the situation and asked for the bank account number, but then my first supervisor came in yelling at me and told the HR person in Chinese not to talk to me. So I attempted to leave.

Not so fast, friend! As I got on my bike, which was parked inside the campus, and got to the gate to leave, I found out they had called ahead to the guard to make sure he locked it and would not let me out. Then both supervisors came and continued in a heated discussion with me for over a half hour. Others from the school came out including the principal, and the supervisor also raised her voice at my wife on the phone, and threatened us. She said she would sue me, call the immigration police, and ruin my reputation.

Under these circumstances, I feel like moving on and letting them sue me for the penalty. Hey, that was money I earned, and I worked hard for it. The penalty clause was there, and I agreed to it, but I HAD to agree to it if I wanted the job. It was a 15-page, nasty contract. Many contracts in this country favor the employer heavily. If they sue, I can counter-sue for false imprisonment. I am fairly angry about what happened. If my new employer does not need the termination letter, and I gave them back all their books, and finished all my work before the next semester starts, what is there to argue about?

My idea today had been to wire them the first half of the money, then receive the termination letter, and then wire them the second half. But a friend has mentioned that maybe that is not a great idea because they may simply refuse to give a termination letter out of spite, and to keep me working for what they perceive as a competitor. If anyone has a suggestion here, let me know. My wife is suggesting the peaceful path – pay the penalty amount, and be done with them.

Also, suggestions on the need for a lawyer here? The last word I got from them, through my wife (since supervisor apparently said this to my wife on the phone) was that if I do not resolve this within one week they will sue me. I am not willing to go back there again because they disallowed me to leave campus last time I was there. I am scheduled to start my new job in a different city on Monday. Thoughts?

2

Well, that escalated quickly. :eek:

One word: evidence.

You can sue for offenses against liberty and so on, but how would you prove it? Any witness who has an employment relationship with the school can refuse to [edit: sign the oath], and the testimony of any witness who has had a dispute with the school can be ignored.

They can claim you didn’t return the textbooks. Did you get stamped receipts or an acknowledgement by email that you returned everything?

They can claim not to have received messages from you. For an email they replied to, obviously the claim would be difficult to accept. But the safe assumption is that they will always play dirty. One way to pre-empt the “we didn’t receive your message” defense is to go to the post office and ask for a “legal deposit letter”. It costs extra, of course. There are other ways to gather evidence… :iphone: :microphone2: :record_button: but the legal deposit system is tried, tested and apparently true.

If you are subject to the Labor Standards Act, for example if the school is a buxiban, there are at least two options for termination by the employee.

Art. 14: You terminate the contract without advance notice. To use this, you must be ready to prove at least one of the six situations listed in the article, and some of them are time-sensitive. The easiest one is if they don’t pay you the full amount they owe you (holidays, overtime, illegal deductions). You are entitled to severance pay.

Art. 15: You have completed three years of service and provide 30 days’ notice. There is no severance pay. (If it’s a non-fixed term contract, you don’t need to have worked for three years, and the notice period may be shorter – but it sounds like your contract is for a fixed term.)

If the contract provides more favorable conditions (for you), it prevails.

If the contract is not yet terminated (you have expressed intent to terminate but have not met the conditions in Art. 14 or 15), the employer can terminate it immediately, without severance pay, if any of the conditions in Art. 12 exists. If you attempt to terminate the contract but do not meet the conditions for doing so, this may be considered a major violation of the contract and therefore an Art. 12 situation.

If the employer resorts to Art. 11, advance notice with pay (or pay in lieu of advance notice) and severance pay are required.

Regardless of the reason for termination, as long as the termination has actually occurred (and not just an invalid attempt), Art. 19 requires the employer to provide a “proof of service record”. A proper termination letter would meet this requirement.

Art. 26 prevents the employer from deducting a breach penalty from your salary. It’s not that the penalty clause is necessarily invalid (though it may be), just that you need to be paid your salary as usual, and if you refuse to pay the penalty, they need to sue you for it. If the court finds the penalty valid but excessive, it can reduce it. (One month’s salary sounds reasonable.) If they owe you compensation for violations (which you can prove), obviously it’s in their interest to settle or just hope you disappear. Even if what they owe you is less than the penalty, they can still get hit with adminsitrative penalties (assuming they don’t have a cheaper way to, uh, avoid those :roll:).

If you have proof that they physically prevented you from leaving, you can probably get them for Art. 5 (see the penalty in Art. 75), on top of whatever the Criminal Code and the Civil Code have to say about it, and it should also qualify as an Art. 14 situation. But I wouldn’t count on the guard’s testimony to be accurate, if he testifies at all.

If you are not subject to the Labor Standards Act, as an employee you are still subject to Art. 482 to 489 of the Civil Code, for whatever that’s worth.

Of course they have no need to know who your next employer will be.

My advice (not legal advice of course): go to the labor department in Banqiao and explain the whole situation. Bring your wife if possible, or a letter from her explaining what happened. Bring your nasty contract, your pay stubs etc. and ask them to look for violations. If the contract is not yet terminated, and you have enough evidence to prove an Art. 14 situation exists, just use that to terminate the contract immediately and remind them that they will have to pay a price for refusing to give you the termination letter. (This only works if the LSA applies.)

If that won’t work, the department can still offer advice and arrange mediation (which can result in a settlement) or at least “conciliation” (sometimes called informal mediation). You can also request a labor inspection (the process that can result in administrative penalties), but they may send you to the other office in Tucheng or wherever it is.

You can consult a lawyer for free at the Legal Aid Foundation (an appointment may be necessary), and if you qualify financially, you can also apply for a lawyer to handle your case.

Taipei City Hall has free lawyers in the morning and afternoon on the ground floor (an appointment may be necessary) and in the labor department on (afaik) Wednesday and Friday afternoons (first come first served). New Taipei probably has them too, but call to check. “English speaking” lawyers are not always English speakers, so bring an interpreter if you need one.

This all takes time, of course. Is your future employer asking for the letter just to make sure your current employer doesn’t sue them? With a JFRV you don’t need a work permit, but maybe they don’t realize that.

3

About it escalating quickly, I am reasonably sure they were there sharpening their knives, waiting for a fight. They had received my resignation letter two days before I came in, and knew I was coming in that afternoon to talk to both of the supervisors. The room where my computer and personal items are, along with about 8 to 10 other teachers without a homeroom or classroom, was locked up. So I had to go directly to them. Yet both of these supervisors were out when I arrived, and a third administrative person was there, and she let me know the resource room was open, so I put my textbooks in there. When I was done, the supervisor was ready to talk to me and she took me into that resource room for a grilling.

When you say that a witness who has an employment relationship with the school can refuse to testify, and anyone with a dispute against the school would be ignored, I am aghast at the unfairness of this statement! Does this apply to civil cases only, or also to criminal cases? So if the guard had taken me to the side and started beating on me, none of the other employees would need to testify? If three other guards showed up with two-by-fours and started whacking on my head, still no? In some way, we could say oh, just about everybody has some kind of dispute with the school, at least the teachers. They changed our contract and there was a massive uproar – the Chinese teachers get a lesser amount of respect and worse treatment, yet work harder (or at least longer hours). Perhaps I should have whipped out my phone and videoed the event. Bad on me.

You know, the thing about claiming I did not return items or textbooks – it is a lie (or close to it) if they claim that. I returned everything or anything else was in the locked office that I was prevented from accessing. I acted in good faith. But on their nice little checklist where I need to get the 24 stamps of people from different departments, there is one of them that says to give back the stamps they gave me before. You know “checked by Mr. XYZ on Feb. 5, 2017.” Now, first, I thought they either gave that to me or I paid for it. Second, if I give that back to them, who the hell else is going to use it, since it has my name on it? Third, I actually had it in my bag that day, and because they started screaming and yelling at me, I was too upset to take the damn stamps out of the bag and give it to them. So crap! Now I need to mail it to them or they will claim I’m the jerk? I think not.

Oh yes, the legal deposit letter. I assume this is different than a standard registered letter. Although I did not think of this, I will mention that all of this transpired during the lunar New Year break and the post offices were not open. So I emailed first, and went there personally at the first opportunity second.

So I had just completed working the first six months at the school, and it was not a buxiban, but rather an international school or bilingual school. The first one-year contract that I signed actually went for something under a year, from August 1 through June 30th. OK, 11 months, but the contract was actually singed in June, if that matters.

Well, since was not working at a bushiban, I am not sure the Labor Standards Act Article 14 applies, but I know they forced us to work on a Sports day and a Parent’s day and did not give us overtime pay. They wanted to give us “compensation leave” instead. I took some of it but not all of it. I can think of another thing, like being forced to substitute for another teacher’s class, and not getting paid for it. There you go, that probably works. In fact, one of the classes was for that very supervisor who was yelling at me, so that would be poetic justice to use that one as a reason for termination of the contract.
OK, thanks for the mention of Article 19. I assumed they would have to give me a proof of service record, or termination letter. Yes, they have paid me my last month’s salary and they would have to sue me to get back their one month’s salary as a “penalty deduction” to include the small lunar New Year bonus I got, that I was not quite aware of. Fine.

I sincerely felt bad about leaving mid-contract and knew I was not giving them much in the way of notice. I had a good relationship with my students there. However, first, I would mention that riding to that school was dangerous. This is a reason I mentioned for leaving in my communications with the school. Right before the lunar new year break, I almost had a head-on collision on the way to school and could have been seriously injured or worse. Also, this school took away a benefit the teachers had mid-contract (the change that caused the uproar I referred to above), which was to ride the school bus with the kids to the school for free. I may well have wanted to avail myself of this benefit.

There are other reasons for leaving, of course, but I cannot fail to mention that the offer from the new school was sweet. It had a very good bump up in pay and responsibility. I did ask them to wait until the end of the year, but when they said they could not wait, I mentioned the penalty clause and asked if they would pony up. And they went for it. So, armed with this unbelievably nice bit of info, I did go in with a pleasant demeanor to talk to my supervisors, ready to ask for their bank account information, knowing I could readily transfer the funds! I did frame it as a signing bonus, as far as the new employer was concerned.

All right, I see your other good suggestions. Yes, I have the Legal Aid Foundation already, thank you. I think the Legal Aid Foundation would probably be better than the Taipei City Hall, for one thing, because they have offices closer to where I live and to my new school. I had offered to send them the first half of their penalty money, then to receive their termination letter, then to send the second half of the penalty money, but now I wonder if that was a good offer to make. I do have a “spousal visa” and do not need a working visa, and I think the new employer is aware of that, so maybe they are trying to avoid getting sued by my old employer? Time is the main problem here, because I just want to start the next job and not go through all the steps you are talking about. But triggering an inspection over there is an intriguing option, if that can be done, and likely will cause problems for them because they have too many students crammed into a small area and are planning to get ready to break ground for a new building. I am sure they would love to avoid any kind of inspection thrown their way. Food for thought, thank you.

4

Sorry, it’s not refusal to testify. It’s refusal to sign the oath (Civ. Proc. Art. 314). Still, there are situations in which a witness can refuse to testify in a civil case such as confidentiality agreements, family relationships, “embarrassment” etc.

Apparently there’s less wiggle room in criminal cases.

I’ve seen the disqualification due to past disputes rule in a civil judgement, as well as an official interpretation of the LSA iirc. It seems to be up to the judge (or other authority) to decide whether or not to use it.

5
  • With registered mail, you can prove you sent it.
  • With “double registered” mail, you can prove it was received (if it was), unless of course the post office forgets about the second part. :roll:
  • With legal deposit, you can prove the content of the letter.

Is this a private school? Do you have non-teaching duties? If so, apparently you’re covered.

6

Thanks for the clear explanation of the differences between registered, double registered, and legal deposit mail. You don’t happen to know how to say double registered and legal deposit in Chinese, do you? I am pretty sure registered mail is just “gua hao.” After asking my Taiwanese wife, she pretty much did not know how to say these in Chinese, but a) offered to ask the Post Office (nice lady, eh?) and b) explained in Chinese that “we want to register this letter and know they have received it” for “double-registered”, so I’m looking a quicker method of saying it. Ah, my wife says legal deposit is this: 存證信函 is that correct?

And yes, this is a private school. Whether I have (or had) non-teaching duties is kind of up for debate. Do any of these things count in your mind?

  1. they had all of the teachers go out on “duty” and watch the kids play outside during two breaks every day on a weekly rotation. I did it two or three times in a semester. We made sure the kids did not fight, or that the kids did not go out there when it was raining, etc. Kind of a safety monitor. No teaching duties involved.
  2. I had to give a presentation on a holiday or “Chinese moral virtues” once a semester in front of a large group of students and teachers
  3. judge for contests such as writing contest or speech contest, along with me volunarily making a rubric for easy grading for one of these
  4. observing other teachers in class and giving them feedback on forms provided by the school
  5. attending professional development seminars, both voluntary and forced, as well as meetings or talks by visiting speakers (explaining Model United Nations or a university in the USA, etc.)
  6. making a reading list of novels for a certain section of the school (middle or high school) - this was not required by the school but something helpful I did, along with providing them with a list of usual novels read by students at each grade level.
  7. during their sports day, we were assigned sports day duties that included moving around equipment for the students to use in their competitive athletic events, after which I helped a class of students in their “flea market” where they were selling books and preparing food to sell to parents and students entering the classroom.
7

Correct. Double registered is 雙掛號.

I don’t know exactly where they draw the line between teaching duties and administrative duties. I suspect you would be deemed a pure teacher, but you should ask the Ministry of Labor and the Ministry of Education. (Hopefully they’ll agree with each other!) You can also ask the respective departments at Banqiao, but as you can see from the notice on the MOL’s website, this is a recent development, so probably not everyone will be up to speed.

8

Just to let you know, we figured out, after checking with a lawyer, that we can use the “double registered letter” to get a “term of service record” (服務證明) instead of a letter of termination. As long as the term of service record has the dates that I worked there, as in starting and ending dates, that is good enough as far as my new employer is concerned. So we send them the double registered letter, quickly, basically, outlining everything that happened. We pay them the money we should pay them, i.e., the penalty clause. If they are jerks and refuse to give the account number, we give the money to the court and the court tells the old school how to get the money. But they legally must give us the freaking term of service letter. If they start messing around, my wife can march right down there with the labor affairs people to “talk things out” and force them to give us what we need. This was all confirmed by the lawyer she saw at legal aid. So advantages include a) no court battles or legal fees, b) I do not need to go there personally or run the risk of getting locked in on campus again, lol, c) life goes on and all parties get what they are supposed to get without coming to blows.

My biggest regrets include leaving behind excellent colleagues and students with a hunger for learning. I am sure the students will be fine with their next teacher, and when the dust settles I can help out if needed, but I believe they will be fine. I got a challenge where I am headed and let’s hope I can make a difference there. Thanks for the encouragement and suggestions you gave, because for a while, I was not sure how it would work out.

9

Yes, 服務證明書 is what Art. 19 of the LSA says, or “proof of service record” in the official translation. If they call it a 離職證明書 (certificate of leaving work) and include the same basic information, it’s also valid.

When the dust settles, please let us know how it went. :slight_smile: