Terminating a contract...not!


#1

An interesting conundrum crossed my path recently.
A friend who has been teaching at a Kaohsiung branch of a Taiwan-wide bushiban organization, which will remain nameless for now, since publicizing the four letters of their name could be considered ‘political’, and further inflame a still possibly retrievable to within the bounds of normal human civility situation, recently set out to leave that school, giving the 30 days notice required in the Chinese and English contracts. Actually, he put in 43 days notice. His three and a half years of employment had been pleasant, and he had been promoted to the teacher-trainer position, where he performed his duties well.
He found a job at another school that set about the process of applying for a work visa for him. In the midst of this period, the new school was told by the Ministry of Education that this teacher needed to receive a letter of termination from his former employer, a zhuan3 pin4 qie4 jie2 shu1, in order for him to be processed for a work visa at a new school. When he contacted his old employer and let them know he required this letter, they put him off for awhile, then finally said no letter would be issued.
This stipulation, that no one is in effect allowed to terminate their contract, isn’t in the contract, either in its Chinese or English version. The result is that my friend cannot go to work for another school, at least not in Kaohsiung City; the Ministry of Education will not issue him a work permit. This is apparently a new requirement, enacted within the past year. My wife says she thinks that this mirrors the situation for all workers under Taiwan’s labor laws, i.e. only the employer has the right to terminate the contract.
In the meantime, said friend must soon receive a visa or leave Taiwan, at which event further postings could be expected about the employment practices of certain schools.


#2

I suggest your friend goes to the Department of Education and cancels his/her Teaching Permit in person. This issue has been discussed in depth on the TEALIT.com forum. One Chinese speaking poster has verified this with the Department of Education, and has found out that you will need a simple letter requesting the cancellation of your teaching permit, notarised by your local representative office.

Then go to Hong Kong, come back on a visitor’s visa and have the new school apply for a new teaching permit for your friend in their name.

However the fact that (as you mentioned in tealit forum post) the new school is not too concerned about this, might indicate that they may not be the best of schools to work for.

Your friend (article 54), the old school (article 52), and the new school (Article 53) are now breaking the law in Taiwan and if found he/she could be deported.

I doubt there would be many consequences for the two schools, especially not if they are well connected.

"Employment Services Act. Promulgated on May 8, 1992

Chapter 5
The Recruitment and Supervision of Foreign Persons

Article 52

An employer shall give written notice to the competent local authorities, the competent authorities for enterprises, or the local police in case any of the following events occur:

An employee has been continuously absent from work without leave for three days and has lost contact,
An employee has severed the employment relationship with the employer,
The permitted duration of employment has expired.

Article 53
An employer shall not behave in the following manners:

Employ or continuously give employment to foreign persons without permission, or when the permission has been invalidated,
Employ foreign persons under his own name to work for other people,
Employ or continuously give employment to foreign persons for whom others have applied for work permits,
Assign foreign persons to engage in work other than that denoted in the permit.

Article 54
In case any of the following conditions prevail, the foreign person’s work permit shall be partially or completely revoked:

Working for an employer not certified in the work permit,
Engaging in work not mentioned in the work permit,
The existence of any of the situations specified in Article 52,
Refusal to have regular physical check-ups during the period of employment, or if the physical and/or mental competence of the employee is inadequate for the work assigned, or if the employee suffers from an infectious disease stipulated by act or death.
Violation of the demands prescribed in accordance with paragraph 2 of Article 44, Article 45, Article 46, or paragraph 1 of Article 47, causing serious consequences,
Violation of other laws or regulations of the Republic of China, causing serious consequences.
Any foreign person whose work permit has been revoked as denoted in the previous paragraph, shall be compelled to leave the country immediately and shall not be allowed to seek work in the Republic of China."

As for the fact that the old school is refusing the sign the transfer letter, this is also a problem with my school. We had a memo issued by our manager last year that no such transfer letters would be given. Just another example of the s**t, we foreign teachers have to put up with. If the new school is well connected then they might be able to put some pressure on the old school to release your friend, thus avoiding a Hong Kong trip.


#3

John,
A load of thanks for including the chapter and sections of taiwan labor law relevant to this matter in your post. Very helpful, and btw where did you get them?
There are two (or more) cases of this sort being discussed on this and other boards at the moment, and in this one the new school is very concerned about getting my pal leagal and visa’d, but were stymied by the previous school’s continued intransigent unwillingness to issue a letter of termination. Cheap shotting ball busters!
I think he’ll try your plan and go to the Ministry of Ed. and cancel his work permit on his own, and then make the necessary Hong Kong trip.

Cheers!


#4

You are welcome,

I have this info, and more, posted on my webpage : http://geocities.com/teach_taiwan/working_legally.htm (which I am in the (slow) process of updating)

The actual translation of the Employment Law comes from this url: http://www.ems-tw.com/act.htm from the EMS Consulting Website : http://www.ems-tw.com/engmain.htm


#5

I noticed that TEALIT.COM has recently added some new material that deals with this release stuff.


#6

[quote=“John”]You are welcome,

I have this info, and more, posted on my webpage : http://geocities.com/teach_taiwan/working_legally.htm (which I am in the (slow) process of updating)
[/quote]

The above link appears to be broken. Does anyone have an update ?