The Japan Airlines subsidiary in Taiwan dismissed eighteen of its Taiwanese flight attendants with severance as its parent company was undergoing financial difficulties in 2010. The employees filed a complaint with the Taipei City Council for Labor Affairs.
The Council found that when comparing across equivalent ranks of responsibility, those employees which were dismissed were all on average older than those who kept their jobs. Specifically, the Council determined that the dismissals were in violation of the Employment Service Act’s Article 5 prohibition against age discrimination, which prohibits employers from “discriminating against any job applicant or employee on the basis of… age.” The Taiwan subsidiary was fined 600,000NTD (approximately 20,000USD) and lost its appeal of the fine in Taiwan’s Administrative Court.
Two of the employees went on to file a civil action against the airline in Taipei District Court, arguing that in light of their wrongful dismissal, they still had an ongoing employment relationship with the airline. The District Court judge determined that while Japan Airlines did indeed base its decisions for dismissal based on the employees’ cost to the company, the higher salaries of the more senior employees meant that in the end the oldest employees were forced out. While this conduct was not directly discriminatory, the judge noted that Article 5 prohibits age discrimination without making a distinction between whether it is direct or indirect. The dismissals were found to be indirectly discriminatory decisions in violation of Taiwan’s employment law.
The civil court judge ruled that because the forced dismissal of the two flight attendants constituted an illegal act of age discrimination, the termination of their employment contracts was invalid. According to the judgment, the flight attendants still had an existing employment relationship with the airline vis a vis Article 71 of the Civil Code, which reads: “A juristic act which is contrary to an imperative or prohibitive provision of law is void, unless nullity is not necessarily implied.” According to the judge, the wrongful termination was a ‘juristic act’ in violation of Article 5, an imperative provision of the Employment Services Act, and therefore legally void. As such, the flight attendants were entitled to resume their work as well as backwages from the date of their termination.
A subsequent appeal by the Taiwan subsidiary of Japan Airlines was dismissed by the Supreme Administrative Court.