| Summary: | 碩士 === 東吳大學 === 法律學系 === 107 === Statistics on labor disputes published from the Ministry of Labor website have broken through the past years in the past 10 years (97-106), and the annual labor dispute cases are as high as 20,000 or more! Exploring the reasons, in addition to the awakening factors of labor self-rights awareness, the change of industrial structure and the inadequacy of labor laws are also very likely reasons.
This article is aimed at the Article 11 Terminative Clause of the Labor Standards Act. It is applicable to individual laborers and individual employers. It starts from the actual judgment opinions of the current courts, and is based on the opinions of experts and scholars of labor law to explore what are the similarities and differences between the practical insights and academic foundations and that between the judges and the judges? And what are the possible reasons for trying to explore the employer’s improper employment? From the statistics of the website of the Court for the last three years (105-107), it can be known that the court’s practice to dismiss the workers in accordance with Article 11 of the Labor Standards Act, the most common one is still the fifth paragraph: "Workers are not qualified for the job." In order to respond to the emerging controversial issues of the "performance appraisal" because of the poor performance, how to establish a unified "work rules" in each industry Judicial review theory and judgment criteria are already a very important topic at present.
The Labor Standards Act stipulates the minimum standard for labor and labor conditions. Article 11 of the Labor Standards Act adopts an enumeration method for termination reasons, and clearly defines the employer’s right to dismiss, but should not only be based on the dismissal of the statutory provisions. Before the provisions were perfected, the judges still need to properly apply the principles of legal principles: the principle of due diligence, the principle of last resort, and the principle of proper procedures. Strictly review the legality of employers and strive to balance the employment rights between laborers and employers and reduce the gap between the Labor Standard Act and the court's practice.
This article concludes with three suggestions as a summary:
(1) The text of the latter paragraph of paragraph 4 of Article 11 of the Labor Standards Act, "There is a need to reduce labor, and there is no suitable work for resettlement", is promoted to all paragraphs as common elements of the termination situation of the Article 11 of the Labor Standards Act.
(This is the "last resort principle of termination".)
(2) Adding penalties for violations of Articles 11 and 12 of the Labor Standards Act and publishing the name of the employer.
(This is my personal experience, hoping to urge employers to abide by the law and prevent employers from illegally terminating employees under the Labor Standards Act.)
(3) Reduce the amount of the subject matter of the litigation.
(According to the above statistics of the Ministry of Labor for more than 20,000 labor dispute cases per year for 10 years, those who can continue to enter the High Court are less than one thousand each year, apparently because labor is not able to afford litigation costs.)
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