Can I force Majeure?

shadowjack
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Re: Can I force Majeure?

Post by shadowjack »

@PG - maybe in China due to law about not working for two years without release.

Other countries? No - it is not just an IT claiming FM and walking away with no penalties.

Heliotrope
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Re: Reply

Post by Heliotrope »

PsyGuy wrote:
> 1) ITs can absolutely claim FM, and exit the contract without penalties. It
> is not a sole option or remedy of leadership or employers. Any . can claim
> FM.
> 2) If an IS doesnt want to pay you out, the contract isnt going to mean
> much under FM scenarios.


How is this different from just breaking contract in the pre-pandemic era?

The act of declaring FM instead of just telling the school that you're leaving because of the pandemic probably doesn't make a lot of difference I think. Either schools will be sympathetic and not hold it against you, or they won't.

wt2015
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Re: Reply

Post by wt2015 »

PsyGuy wrote:

> Chinese law on FM is very easy to interpret in China, its whatever China
> wants it to mean.

This is a convoluted statement. It can't be both easy to interpret and whatever China wants it to mean.

I nevr claimed "claims of thousands of force majeure
> certificates being issued, in relation to teachers". Just that
> thousands have been issued.

Thousands have been issued to BUSINESSES. This is a discussion board for teachers thus pretty much anyone here may assume this applies to teachers, and it does not. In addition,if this language is not specifically in the employment contract then it will not be applied, period.
Many people are in precarious situations right now and giving armchair legal advice is just bad practice.

PsyGuy
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Post by PsyGuy »

@SJ

Yes it is, if its as easy as the employing . to claim FM than its just as easy for the employed . to claim FM.

@Heliotrope

A Chinese contract contains a breach penalty for example. If either . terminates the contract thus breaching than the breaching . owes a financial penalty (coin) to the other .. An IT executing th FM clause avoids that penalty. This is just one scenario.

@wt2015

This is a discussion board for "Educators", says so right in the title. ITs comprise the majority of our readership. ISs are members of the group of businesses, for which China has issued thousands of FM certificates. This absolutely could pertain to ITs.

Walter
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Re: Can I force Majeure?

Post by Walter »

This is a discussion board for "Educators"
Sure you're in the right place, Dave?
"Force Majeure" is a contractual clause that outlines the existence of certain conditions because of which an employer may be able to forego contractual obligations. Usually, the clause indicates examples of circumstances that may provoke the declaration of "Force Majeure" (Earthquake, insurrection, pandemic and the like) but these are always "inter alia" and not exclusive. The clause should also make clear what are the remaining obligations of an employer (in our case, repatriation of teacher and belongings and four months' salary).
There is no such reciprocal right of an employee in any contract I've ever seen. However, in exceptional circumstances, good employers ought to recognize that when living conditions become unusually difficult they will at least agree to flights and shipping.
The idea that a teacher can declare "Force Majeure" and expect to have the contract paid up is a step beyond stupid advice.

PsyGuy
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Post by PsyGuy »

@Walter

Yes, and more so than you.
So says leadership, of course their position and opinion sides with, gosh, leadership. There is absolutely a reciprocal right, your error is substituting employer and employee with ..
Again, just as with @SJ, these are two different qustions, exercising FM AND "have the contract paid up" are two issues.

Heliotrope
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Re: Can I force Majeure?

Post by Heliotrope »

As of Mar. 3, China has issued 4,811 force majeure certificates, all of them to businesses and zero to employees.

And even if an employee would try, just like businesses they would then need to prove that their ability to meet the contract was made impossible by the pandemic, which would be very challenging to prove sufficiently. That's why most FM claims fail.

PsyGuy
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Post by PsyGuy »

@Heliotrope

A certificate is not required to claim FM (unless the contract states that one is required), nor did I claim that any of the FM certificates were issued to ITs.
That would not be difficult to prove significant, assuming proving it at all was an issue.
That is not why FM claims fail, its usually because the language isnt detailed and specific enough.

Heliotrope
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Re: Can I force Majeure?

Post by Heliotrope »

So then the act of declaring FM instead of just telling the school that you're leaving because of the pandemic probably doesn't make a lot of difference.
Either schools will be sympathetic, grant your requests, and not hold it against you, or they won't.
Unless you're willing to take it to court. Good luck to whoever tries that.

PsyGuy
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Repy

Post by PsyGuy »

@Heliotrope

It makes a lot of difference if your IS wants you to pay a breach penalty. The same luck would need to be on the side of an IS that wanted to challenge the ITs declaration of FM.

Heliotrope
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Re: Repy

Post by Heliotrope »

Makes no difference. The IS will take the exact same steps to get the penalty paid as they would if you were to just break contract without declaring FM.
If it ends up in court, the IT will have to prove that FM is justified. The IS will claim the IT is not holding up their end of the contract, easily supported by the IT not showing up for work. Then the IT will need to prove that their ability to meet the contract was made impossible by the pandemic, which would be very challenging to prove since all other ITs will still be teaching.

PsyGuy
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Post by PsyGuy »

@Heliotrope

It make all the difference, the IS doesnt have those steps available to them in an IT claiming FM. The IS just as an IT would, has to litigate the issue in court, that the ITs claim of FM was invalid. The IT as not being the plaintiff doesnt have the burden of proof.

Heliotrope
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Re: Reply

Post by Heliotrope »

Nope, the IS will just sue the IT claim breach of contract (the IT is not working).
The IT can then claim it's because of FM, which they will then have to prove.

shadowjack
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Re: Reply

Post by shadowjack »

PsyGuy wrote:
> @Heliotrope
>
> It make all the difference, the IS doesnt have those steps available to
> them in an IT claiming FM. The IS just as an IT would, has to litigate the
> issue in court, that the ITs claim of FM was invalid. The IT as not being
> the plaintiff doesnt have the burden of proof.


Um no. There is a contract. There are penalties, etc stipulated in said contract. Just because the IS is the plaintiff does not negate the facts of the contract if an IT decides to declare FM when nobody else at the school, or embassies, or country has declared FM. Most important - if the insurance companies have not accepted FM.... LOL

Heliotrope
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Re: Reply

Post by Heliotrope »

@shadowjack

Exactly.
It *might* be different if the IT is significantly more at risk than their colleagues, for example an obese teacher who is old, has a chronic lung disease and a serious heart condition, and is immunocompromised. But even then they could teach over the internet, and I assume not many schools would hold it against them if they don't want to be in the classroom, even if it was just to avoid the PR nightmare of the IT dying because the school forced him to teach despite all the aforementioned high-risk factors.

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