By Hung Ou Yang and Paul Ma
For optimized labor management, employers establish work rules which specify the guidelines in the workplace and encompass reasons for dismissal, in the event of any violations of such rules. However, disputes still may arise since work rules would be overly utilized as the employers' weapon against employees. In some cases, the court might even refuse to follow the work rules set by the employers.
1. Defining "Serious Violations of Work Rules"
Under Taiwan's Labor Standards Act, specifically Article 12, Paragraph 1, Item 4, an employer may terminate a labor contract without advance notice, where a worker is in serious breach of the labor contract or in serious violation of work rules. In such cases, employees are not entitled to severance pay or wages for the notice period pursuant to Article 18 of the same act.
Practically, the Supreme Court interprets that the term "serious violation" refers to specific instances where an employee's breach of work rules is such that it is objectively unreasonable to expect the employer to impose any disciplinary action other than dismissal, thereby continuing the employment relationship. The severity of the violation should align with the dismissal, considering factors such as the nature of the violation, whether it is a first-time or repeated offense, whether it was intentional or accidental, the danger or damage caused to the employer or the business, the closeness of the employer-employee relationship, and the employee's length of service. These said factors serve as the criteria for judgment. See 105 Supreme Court Tai-Shang-Zi No. 599 Civil Judgment (2016).
2. How the Taiwan's Court Views Employers' Work Rules?
Given that it is difficult to give a simple and clear definition of "serious violations", some employers opt for defining their own grounds for dismissal within the work rules, intending to clarify or expand upon the Labor Standards Act's provisions.
It should be noted that such rules do not bind the courts in Taiwan, particularly the recent cases show that the courts tend to independently review and contemplate whether the employees' behavior can constitute the "serious violation" or not.
That is to say, the court might refuse to follow the employers' work rules for they fail to reflect the seriousness of the violation. Even worse, the court can deny the validity of work rules since they unreasonably grant the employers the power of dismissal based on the employees' performance, rather than whether the violations exist. To safeguard employees' rights, courts do not automatically accept the dismissal grounds set by employers. Instead, they evaluate whether the violation truly meets the legal definition of a "serious violation of work rules." If the employers' work rules do not reach this threshold (precisely speaking, the court's threshold), the court may rule the dismissal unlawful.
Following the court's tendency, the employers must ensure their work rules are applied fairly and align with the legal definition, which is adopted by the court, to reduce the risk of an unlawful dismissal ruling.
3. Essential Thoughts on Serious Violations of Work Rules
To recap, serious violations of work rules should be limited to cases where the employer has no choice but to immediately terminate the contract. The employer shall refrain from setting up rules containing nuance mistakes or private behaviors irrelevant to the business or employees' work.
As for the employers (or HR), the courts' latest judgments shall be well incorporated to ensure the work rules can be updated in compliance with the most recent laws and practices. Other than that, when setting dismissal grounds, employers should ensure that the punishment matches the severity of the violation, consult with the labor union or obtain labor-management approval, and give employees a chance to provide an explanation.
In conclusion, the determination of whether an employee's actions constitute a serious violation of work rules is a complex issue that involves legal considerations, workplace policies, and the protection of employee rights. Employers are encouraged to seek legal counsel to ensure compliance with labor laws, while employees with concerns should consult legal professionals to protect their interests.
AUTHOR: Hung Ou Yang
Managing Partner
Taipei
+886-2-2707-9976
[email protected]
Copyright: Brain Trust International Law Firm
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
撥打電話