職災勞工解僱相關爭議——臺灣高等法院109年度勞上字第12號民事判決評析【醫法新論】 試閱
Disputes Related to Dismissal of Ｗorkers Suffering from Occupational Accidents-An Analysis of the Civil Judgment for No. 12 in 2020 by Taiwan High Cour
臺灣勞動基準法第13條規範職災醫療期間內雇主的解僱限制，勞工職業災害保險及保護法第84條則規範醫療終止後，仍需具備身心障礙不堪勝任工作之要件雇主方能預告解僱職災勞工。對於醫療終止前後之解僱認定，法院實務上仍充滿爭議。本文藉由評析實務判決，比較臺灣與日本職災解僱體系，並剖析復配工評估、醫療期間、公傷病假、協商必要性等解僱相關因子，再比較各類型職災解僱實務判決。文末提出作者之建議，除了考量勞資間的衡平，也應確保職災勞工的復工動機。
In Taiwan, Article 13 of “Labor Standards Act” regulates the termination restrictions of employer under the medical treatment, and Article 84 of the “Labor Occupational Accident Insurance and Protection Act” regulates that upon completion of medical care, the employer shall terminate the labor contract with any occupational accident worker only when they suffering from physical/mental disability and being incapable of work. The legality of terminating a contract under and upon completion of medical treatment is still full of disputes in court decisions. By analyzing the court judgments, this paper compares the legal system of termination a contract with occupational accident workers in Taiwan and Japan. Besides, this paper analyzes related factors, including evaluation of reinstatement and fitness of the work, the period under medical treatment, occupational sickness leave, the necessity of negotiation, and then compares various types of court judgements about occupational accident workers. At the end of this paper, the author’s suggestion is put forward to weigh the rights and benefits between the employers and employees, and also to ensure the motivation of workers of returning to work.
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