護理勞動權益：懷孕女性無意願配合夜間工作，該當「不能勝任工作」事由？【醫事法學教室】 試閱
Labor Rights of Nursing: Shall a Pregnant Woman Who Has No Volition Working at Night Be “Incapable and Incompetent” ?
懷孕女性絕對禁止夜間工作，乃屬法有明文之強制規定，不容勞雇雙方以契約自由為由規避之。本文將介紹一則護理人員無意願配合夜間工作，遭雇主依勞動基準法第11條第5款「勞工對於所擔任之工作確不能勝任」解僱之判決，本件之爭點涉及何謂「不能勝任」之解釋，本文擬藉此判決探討之，並評析懷孕女性無意願配合夜間工作是否該當「不能勝任工作」事由。
It is a mandatory that a pregnant woman is forbidden to work at night and there is no any possibility to avoid it by the freedom of the contract between employers and employees. In this article would a case be introduced, in which one of the nursing staff had no volition working at night, but was fired because of “incapability and incompetence” according to paragraph 11 section 5 Labor Standards Act. The legal issue would be the definition about the “incapability and incompetence” in the case and it would be discussed here. Furthermore, it would also be discussed whether a pregnant woman would be “incapable and incompetent,” if she has no volition working at night.
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