As we mentioned in our previous article, “Mass layoffs in Taiwan: A guide for employers”, when an employer needs to dismiss a certain amount of its Taiwan workforce over a defined period of time, it must comply with the provisions of the Act for Worker Protection of Mass Redundancy (the “MRA”). Any employer who does not follow the procedures under the MRA may be subject to administrative fines of up to NT$500,000. As a follow-up to that article, we provide below some additional insight regarding the mass layoff process based on our recent experience of handling such cases.
Required notification and calculation of the notice period
An employer seeking to implement a mass layoff plan (a “Plan”) shall notify the relevant authorities/agencies or personnel at least 60 days prior to the proposed termination date. However, in addition to the procedures required by the MRA, an employer shall provide 10 to 30 days of advance notice to individual terminated employees based on their years of service, pursuant to the Labor Standards Act (the “LSA”).
An employer shall also notify the local labor authority and public employment services institution at least 10 days prior to the proposed termination date, according to the Employment Service Act (the “ESA”). The calculation for determining when the termination report should be submitted is slightly different than that for the 60-day notification period mentioned above in that the first day is the date the termination takes effect. If the last date in that period, the date requiring submission, is a holiday, it would automatically carry over to the next day. For example, if employees are scheduled to be terminated on 20 February, the first date to start the calculation of the 10 days would be 21 February. In general, the last day for the employer to submit the report should be 12 February; however, if that day is a Sunday, the employer may complete the submission no later than Monday, 13 February.
Submission of required documents and negotiations
The Plan shall provide detailed information regarding the layoff and relevant evidence, such as financial statements, to justify the layoffs. This evidence may also be provided after the initial submission of the Plan. If employers cannot produce such evidence, they may provide a written explanation instead.
If an agreement is not reached by the employer and the employees within 10 days from the day that notification has been given, the relevant local labor authority will invite both sides to form a negotiation committee in order to finalize the terms of the Plan. In our experience, this 10-day period is not a hard and fast rule (at least for the Taipei City Government). In circumstances in which the employer can provide written evidence that it has been trying to negotiate with the terminated employees, intervention by the labor authority is less likely. In practice, such evidence is usually in the form of meeting minutes. The minutes submitted in the final stage, once negotiations have concluded, must be sufficient to prove that both parties have reached a mutual agreement and should contain an acknowledgement that the terminated employees have agreed to the formula used to calculate their severance package. Each employee must sign the minutes to show his/her express consent to their content. An attendance sheet bearing the signatures of the representative of the employer and all employees is also required.
Employment counseling for terminated employees
After the Plan is filed with the local labor authorities, the public employment services institution will ask the employer if the terminated employees require employment counseling. This is a procedural inquiry made of every company subject to mass redundancy and is not compulsory. It offers the terminated employees a chance to better understand Taiwan’s employment counseling resources. The process involves an informational session at the company’s offices, during which the presenters introduce employment resources, such as counseling services, employment insurance, channels for job hunting, and others. They also hold a Q&A session to respond to employee’s questions regarding issues related to unemployment benefits and other services.
Employer’s post-termination obligations
Employers shall issue involuntary termination certificates. Service certificates may also need to be provided if the terminated employees ask for them. The involuntary termination certificate is required for employees looking to register for job placement, apply for unemployment benefits, and obtain vocational training. The service certificate lists the employee’s job title, their years of service, the nature of the job, and their salary. Please note that employers may not record any negative information regarding the employee on the service certificate.
Tips for negotiating with terminated employees
The employers may terminate employees at the end of the 60-day notice period under the MRA, provided that the laid-off employees are all issued statutory entitlements under the LSA and Labor Pension Act (the “LPA”). The MRA merely imposes an obligation on employers to negotiate the severance package with the employees; there is no punishment for employers who are unable to ultimately reach a better deal with the employees. Employers should however be reminded that unhappy employees may challenge the termination’s legal basis through official complaint, mediation or even bring a suit.
To avoid such risks, employers can of course offer a more generous severance package than that mandated by the LSA and LPA if they believe that their legal basis for the layoff is not strong enough or if they wish to facilitate a more efficient mass layoff process and reduce the risk of future disputes arising. However, as the MRA does not require the employer to provide the employees with a better deal when a mass redundancy occurs, it is important for the employer to acknowledge that it’s not wise to show all of their cards at the very beginning of the negotiations. In our experience, such a move leads to deadlock and requires much more effort to reach a settlement with the employees.
For more information on Taiwan employment matters, please contact Christine Chen at firstname.lastname@example.org or on +886 (0) 2 2311 8307.Written September 27, 2018 By Christine Chen, Brian Yang.