The Supreme Court rendered the 103-Tai-Shang-1921 Decision of September 18, 2014 (hereinafter, the "Decision"), specifically pointing out that under Article 11, Subparagraph 5 of the Labor Standards Law, when workers are confirmed to be incompetent for their job duties, the "principle that employment termination should be the last resort" shall still be followed.
According to the facts underlying this Decision, two parties entered into an employment contract under which the Appellant was hired as the administrative chef of the Appellee's company. The Appellee's company asserted that such employee had failed to develop and deliver a usable recipe and terminated the contract at issue in accordance with Article 11, Subparagraph 5 of the Labor Standards Law in less than three and a half months after employment. Article 11, Subparagraph 5 of the Labor Standards Law provides: "No employer shall, by advance notice to a worker, terminate a labor contract unless one of the following situation arises: …(5)A particular worker is clearly not able to perform satisfactorily the duties required of the position held." Although it is not specifically stipulated that employment termination shall be the last resort, still it was pointed out in the Decision that under Article 11, Subparagraph 5 of the Labor Standards Law, if a worker is clearly unable to perform the duties required of the position held, the employer may give a prior notice to the worker that the labor contract will be terminated. According to the legislative objective of this requirement, labor contract may be terminated only when the services provided by workers cannot meet the objectively reasonable economic objectivies that the employer seeks to achieve through the labor contract and when improvement still cannot be achieved even after the employer has exhausted all the means provided by the Labor Standards Law. It is only in this fashion that the "principle that employment termination should be the last resort" is satisfied.
In the Decision, it was further pointed out that it should have been considered in the original decision if the three-year contract and the wages conform to reasonable expectation under general social concepts even though new recipes were not developed by the employee at issue during the employment period of three and a half months. In addition, if the various administrative tasks assigned by the employer cannot be concurrently handled in addition to developing recipes, does this count as incompetence for job duties? In addition, what measures, if any, as allowed under the Labor Standards Law were taken by the employer to compel such employee to improve himself but to no avail? Therefore, it was held in the Decision that the original trial court could not elect to conclude that the employer's termination of the employee satisfies the "principle that employment termination should be the last resort" without examining above-mentioned matters. Therefore, the original decision was reversed and remanded.