Juirsprudence Discussion On Wrongful Dismissal

In the21th century high-tech era, laborer is still most ofsocial class, they use income from work to safeguard their ownsocial and economic benefits, and the employers also need a laborerprovide labor, create higher economic value, and then avoid beingeliminated by the fierce market competition. Even though therelevant legal provisions for workers and employers have the samefreedom to cancel the contract, but in real life, workers earnliving expenses depend on the existence of labor relations, andreflect their social value through the labor relations. The loss oftheir jobs at the same time also means that the loss of livelihoodand their dignity, so for the laborer, they almost have no intentionto give up a stable labor relationship. But for employers, when hethought the laborer harm its business, whether it is the personalfactors of laborer, or enterprise management temporary difficulties,or merely subjective distaste for the laborers, the employer willhave the idea of end labor relations. Therefore, whether from thesupply and demand of the society, or the employer interests andsocial public welfare, dismissal is inevitable in the process ofsocial and economic development. If allow employers to terminatefreely or termination of labor relations, workers will getdisoriented, and likely to fall into the predicament of the life.Therefore, how to prevent wrongful dismissal, to provide betterlegal protection for workers, maintain and implement the basic rightto survival and development, has become an important research issuein labor law. The same is true in the labor law in Taiwan. Deepresearch on wrongful dismissal system in Taiwan would provide usefulhelp to perfect relevant legislation in mainland area.Dismissal is happened under the condition of not completely toperform the contract and not achieve the purpose of the contract fully or partly. It will inevitably impact the legitimate rights andinterests of one side or both sides. Dismissal should be withoutlimited or must be accompanied by proper reason; it has importantmeaning of legal theory. From the freedom of dismissal to abuse ofdismissal, and to legitimate reason of dismissal, the theory ofdismissal has experienced the historical transformation and thedevelopment of the test of reality. In Taiwan, the labor lawsadopted the theory of legitimate reasons, and distinguished thedifferent of the disciplinary dismissal and layoffs.In order to further illustrate what is a wrongful dismissal, weinterpret the article11and article12in "the labor standards law"of Taiwan which specifies the legitimate reason. Even if theemployer has a legitimate reason, wrongful dismissal also is limitedby the principle of good faith and last resort, and it should alsopay attention to the certainty of the reason in the proceedings. Insome special circumstances, such as women before and afterchildbirth, medical treatment period, during the period of labordispute mediation or arbitration, etc., even if meet therequirements of the legitimate reason, based on the principle ofprotecting laborers, on the premise of guarantee the laborers’ rightto work, it also restrict or prohibit employers the right todismissal. The limits to dismissal in conventions andrecommendations of International Labor Organization, the cases inUnited States, and the new development in theory of dismissal inJapanese would have certain reference significance for our research.If employers dismissal workers without legitimate reason, out ofscheduled period or violate the principle of good faith and lastresort, it will constitute wrongful dismissal, the dismissal is notlegally effective in accordance with the law, and the labor contractis still valid. Laborer first can apply for mediation. The mediationis not only including the mediation of competent authority orcommittee in the villages and towns, also including the court’smediation. And mediation of wrongful dismissal is compulsory events,without mediation it shall not be charged. At the same time, workerscan also apply to the court for preservative measures, thepreservative measures to status and wages, but the court in Taiwandoes not recognize preservative measures, and through specific case denied its necessity, thus blocking the laid-off workers to seek thebest way to real-time relief. To prosecute is the last way toprotect workers’ rights. Through the appropriate procedure, thedismissed workers can realize their own rights and interests byapplying for severance pay or confirming the employment relationship.In the case of wrongful dismissal, there are many controversialproblems of practice. It is a real challenge and a reflection forthe labor law to have a detailed interpretation of "the laborstandards law" in Taiwan combined with the practice cases from thepoint of view of legal theory. We can know about the advantage anddisadvantage of wrongful dismissal legislation in Taiwan through theinterpretation of the text as well as the specific law application.We provide mature experience of wrongful dismissal for the futurelegislation by the conventions of International Labor Organizationand foreign legislation. We can minimize the damage to the laborerrights and interests through the comparative study of the reliefways and specific application procedure.