[quote=“LawFerret”]One thing I was hoping the lawyers on the board would flesh out is the difference between liquidated damages and a penalty.
HUGE DISCLAIMER**** I am completely unfamiliar with Taiwanese law (and pretty clueless about my home country’s law). I welcome all the lawyers to correct my mangled legal analysis.
At the risk of grossly oversimplifying things, when a contract asks for the breaching party to pay the non-breaching party a sum of money, the contract is either calling for “liquidated damages” or a “penalty.”
Liquidated damages, essentially, are a genuine pre-estimate of the damage likely to be caused by a breach. Liquidated damages are enforceable. A penalty clause, on the other hand, asks the contract-breaker to pay an amount that exceeds the actual loss to the non-breaching party. Penalty clauses are not enforceable.
For me, the contact asks for the entire training pay to be returned. I feel this is an unreasonable estimation of my boss’ damages, as the school recoups its training pay day by day. Thus, I feel I have a good-faith argument that the reasonable estimation of damages should prorate the training pay throughout the year.[/quote]
Why do you need all this technical legal jargon? It sounds like you’re just trying to hide behind clever arguments, instead of dealing with the truth, in a country where the rule of law can be pretty arbitrary sometimes. First, read [url=http://tw.forumosa.com/t/qing-li-fa-and-what-it-really-means/8617/1 old thread about how people generally resolve disputes here.[/url] It might put things in perspective. Take note of the last bit by Feiren. [quote]I think one reason that people tend not to go to court is because you usually have to pay for your legall expenses. So even if you win, you award may be dwarfed by what you owe your lawyer. [/quote]
Your boss is aware that you’re leaving and aware that you intend to do so on your terms. It’s a fair assumption that a) she is offended by this, and b) she will try to replace you as and when it suits her, not you. You may simply be informed one day that you are no longer required, and negotiations about your entitlement to severance pay will begin from there. It’s unlikely there will be any goodwill or leniency on her part. And whatever others may say about your legal entitlements, if you’re not here in Taiwan and can’t afford a lawyer (or the amount in question is too small to make a lawyer worthwhile) then your legal position s that you’re shit out of luck.
While you are wrangling about who gets paid what, the clock will be ticking. You may be forced to take a trip to Hong Kong, which will cost money. Assuming you have NT$100,000 in the bank to show the nice ladies in the visa office you may be able to get a new visa. Or you may try and return without a visa if you can do so less than one month before your free flight.
Alternatively, if your boss has decided to get nasty then a call informing the authorities that you were not working the required 14hrs a week will lead to the question “how did you support yourself in Taiwan?” Inevitably you will then be under suspicion of working illegally and it is possible you may find it difficult to return from your visa run. It’s unlikely, but it does happen. It all depends who wants to make your life difficult.
In any case, you’re down the cost of a flight and the money you don’t earn between getting terminated and the day of your free flight. You can’t bring it forward, after all. So what’s the cost of your ‘free’ flight now? NT$10-20,000 already. And that’s before you even address the issue of your penalty.
The contract said that if you leave early you lose the entire amount. You agreed to it. Do you want agreements to be upheld in this country or do you want an arbitrary solution based on what seems reasonable to a Taiwanese person rather than your sophisticated western legal mind? Either way you’re not going to get very far.
Suppose your boss decides to just withhold everything you think she owes you on your next pay day, and force you out of the country by cancelling your work permit. You pay for the visa run and then begin legal action to recover the money you think she owes you. Even if the judge concludes that the penalty was illegal, and even if he/she agrees that you deserve to be paid the wages owed, youre not going to get any award for your legal costs. So you still lose.
You got something for nothing. Congratulations. Now you’re determined to take advantage of it even though the real cost to you makes it seem pretty worthless to anybody else. What seems reasonable to you is not relevant. You have to look at what seems reasonable to the person who is expecting you to keep to the agreement that was made.
And one final word: you started this thread by claiming that you wanted to take a vacation, and later changed your story to admit that you were planning to find a new job when you came back. You were asking your boss to hold a work-permit open for you, allowing you to return without obtaining a new visa and also preventing her from replacing you. Subsequently you apparently planned to then abuse this trust by taking a new job somewhere else, which would have meant that you got paid in full, right up to date, and left her in a difficult situation. It’s behaviour like this that makes employers wary of being reasonable with their employees.
By misrepresenting yourself in this way you have also lost any sympathy you might have got. You lied. You’re trying to get everything your own way without any sincere attempt to be reasonable. All the nice promises are just bullshit to get your own way. You’re a lying shifty little toad and you deserve any trouble you get as a result of this.*
[quote=“LawFerret”]I told my boss I would like to go home in July for a 4 week vacation. She said this would be a breach of contract and that I would have to repay my training wages (32,000). My contract is silent on this matter.
I only teach 7 hours a week, and it was easy for me to find a sub willing to cover for me and come in a few weeks early for training (at my expense). My boss refused allow a sub. I told her I’d teach an extra 4 weeks longer than my original contract. She refused.
I’m afraid my boss is being uncooperative because she WANTS me to breach… By the time July arrives, I will have taught 10 months. I only teach 7 hours per week, so I won’t generate a lot of income for her in those last two months. But if she can get me to break the contract, she thinks she can get 32,000.
I would like to claim that I am not breaching the contract. Since my contact doesn’t say anything about vacations.
Alternatively, I would like to claim that 32,000 is unreasonable, since I will have worked 10/12 of my contract before going home (and am willing to work another 1/12) after I come back.
Has anyone else been in a similar position? How did it turn out?
Finally, from other posts, I’ve read that a boss cannot refuse to pay you money you’ve earned. Does this mean I can tell my boss I plan to quit two weeks before my plane leaves and that I will come in to pick up all my salary the day before I take off? What if I walk in the day before I leave and she just refuses to pay me, claiming I owe her money?[/quote]
*Note to Erhu: This opinion has nothing to do with whether it’s reasonable to quit a job or whether the penalty is reasonable. The issue is that if you’re not prepared to be honest and sincere in your dealings with others then you can’t expect them to be fair with you. If you don’t have the balls to tell the truth then it’s impossible to reach an agreement in good faith. Had the guy simply given notice of his intention to quit then he might have got better advice about how to get his pay without paying the penalty. I’ve done it in the past, but don’t feel inclined to share the story with someone who is contributing to the general distrust of foriegners that makes penalties such an unwelcome feature of life here.
That is her choice.
