Can an employer change the position of an employee who applies to return to work after taking a leave of absence without pay? Can the employer choose to lay off the employee because there is no position available for them? This article will provide a legal analysis, and if you have further questions, please feel free to discuss with us.

Definition of Leave without Pay

There is no clear definition or process for leave without pay and resumption of work in the law. If we summarize from court judgments, the definition of leave without pay is:

The employment contract still exists and is effective, but both parties agree that the employee does not need to go to work temporarily (paying for services), and the employer can temporarily exempt the payment of salary.

Basis of Leave without Pay:

  1. The provisions of parental leave without pay stipulated by the Gender Equality in Employment Law After one year of employment, an employee can apply for parental leave without pay until the child is three years old. (For the reasons of leave without pay stipulated by law, the conditions agreed between the employee and the employer are more lenient than those stipulated by law. For example, the employer agrees that even if the employee has not been employed for one year, he/she can still apply for leave without pay.)
  2. Article 5 of the Rules for Leave of Absence of Employees When ordinary sick leave exceeds the limit of personal leave or special leave, it can be handled by means of leave without pay.
  3. Article 29 of the Occupational Accident Labor Protection Law Before the occupational injury is recognized, employees can apply for ordinary sick leave according to Article 4 of the Rules for Leave of Absence of Employees. When the ordinary sick leave period expires, the employer should provide leave without pay. If the recognition result is an occupational injury, it will be handled as a public injury leave.
  4. The company’s self-regulation of reasons for leave without pay.

How to arrange reinstatement?

After the employee’s period of unpaid leave has expired, the employer will arrange for the employee to return to their “original position” or the position they held before the unpaid leave.

If the employer wants to change the employee’s position, what should they do?

If the employer wishes to adjust the employee’s position, the competent authority will recognize that, with the consent of the employee and in compliance with the five principles of job transfer, the employer may adjust the employee’s position upon reinstatement.

The five principles of job transfer are: (1) based on business necessity, (2) not in violation of the employment contract, (3) no unfavorable changes to the employee’s salary or other employment conditions, (4) the employee is capable of performing the new job based on their physical and technical abilities, and (5) if the new workplace is too far, the employer should provide necessary assistance.

Can the job rules be stipulated to “reallocate positions and adjust salaries when applying for reinstatement”?

It is not feasible in principle.

The nature of unpaid leave is only to suspend the employee’s work obligation and the employer’s obligation to pay wages, so once reinstated, it must follow the provisions of the original employment contract. Therefore, as mentioned above, the principle of reinstatement should be followed. If it is deemed necessary to transfer or adjust positions, it must comply with the provisions of the five principles of job transfer, and the basic benefits should be equivalent or similar (the employer does not need to consider bonuses and specific position allowances at this time).

Therefore, if the employee on unpaid leave was in a managerial position, they can be reassigned to a non-managerial position with equivalent or similar basic benefits.

If you have more questions, please feel free to contact me using the form below.

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