TAIWAN Law and Practice Contributed by: Chengkai Wang, Yachi Huang, Herman Lin and Tzutien Huang, Dentons Taiwan (Dacheng Taiwan)
Legislative Framework Acts in the legislative framework include the following. • Gender Equality in Employment Act (Article 11) – this act explicitly prohibits any work rules, labour contracts or group agreements that require employees to resign or take unpaid leave due to marriage, pregnancy, childbirth or childcare responsibilities. Any violations of this provision ren - der the stipulations or agreements invalid, and any resultant terminations are deemed without effect. • Labor Standards Act (Article 13) – this provision protects employees who are on leave due to work- related injuries or are receiving medical treatment as specified under the Act. Employers are prohib - ited from terminating such employees unless the business is unable to continue due to extraordinary circumstances, such as natural disasters. Even in these cases, termination requires prior approval from the competent authorities. Implications for Employee Representatives Employee representatives, particularly those involved in union activities or labour management dispute reso - lution, are afforded additional protections to ensure they can perform their representative roles without fear of reprisal or dismissal. This safeguard is cru - cial for maintaining fair and just labour practices, as it allows representatives to advocate effectively for the rights and interests of their constituents. These protections are designed not only to safeguard the rights of employees during periods of vulnerability but also to ensure that employees are not discrimi - nated against or unfairly dismissed for upholding their rights or fulfilling their responsibilities in workplace relations.
these terms do not contravene existing laws. Grounds for a wrongful dismissal claim include: • dismissal without meeting the statutory reasons for layoffs (economic or operational) or disciplinary dismissals as defined in the law; and • termination that violates the agreed terms of the employment contract that are themselves lawful. Consequences of a Wrongful Dismissal Claim Employees who believe they have been wrongfully dismissed have the right to seek mediation through local government employment centres or to file a civil lawsuit. Most Taiwanese courts have specialised divi - sions handling labour-related cases to facilitate this process. If the court finds the dismissal to have been unlawful, the consequences for the employer can include: • payment of the employee’s salary for the period they were unemployed due to wrongful dismissal; • compensation for any loss or damages suffered by the employee as a result of the dismissal; and • potential reinstatement of the employee to their former position. Overall, a successful wrongful dismissal claim may entitle the employee to accrued salary, reasonable compensation and possible reinstatement. 8.2 Anti-Discrimination Grounds for Anti-discrimination Claims Taiwanese labour law prohibits discrimination on vari - ous grounds including race, class, language, thoughts, religion, political affiliation, place of origin, gender, sexual orientation, age, marital status, appearance, features, physical or mental disability, astrological sign, blood type or past union membership. Discrimination can relate to any aspect of employ - ment including hiring, firing, training, benefits, pay and termination. Burden of Proof In Taiwan, the initial burden of demonstrating the existence of discriminatory conduct typically falls on the complainant. However, the burden of proving that discrimination did not occur rests with the employer.
8. Disputes 8.1 Wrongful Dismissal Grounds for a Wrongful Dismissal Claim
Wrongful dismissal occurs when an employer ter - minates an employee without adhering to the legal grounds stipulated under the Labor Standards Act (Articles 11 and 12) or specific contractual terms agreed upon in the employment agreement, provided
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