Can I force Majeure?

shahabh
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Joined: Sat Apr 06, 2019 2:52 am

Can I force Majeure?

Post by shahabh »

Can someone please explain if force Majeure is claimed... what that means for the school and the teacher? Will the teacher be given vacation pay or any prorated bonus? Will they at least get money for until they did online teaching?

marieh
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Re: Can I force Majeure?

Post by marieh »

Force Majeure ultimately means that your contract is essentially null and void and can be declared by the school due to unforeseen circumstances (like COVID-19). You can choose to stay or leave and the school can choose to keep you or let you go. As for the terms, it depends on your contract. Force Majeure at my school is 3 months of severance pay, a plane ticket home, and your shipment. I have a feeling there are a lot of schools out there with less desirable terms.

You yourself cannot force Force Majeure.

PsyGuy
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Response

Post by PsyGuy »

When an IS claims Force Majeure it allows the IS to void and nullify the contract without further obligation, this usually means anywhere from 0-30 days of salary and thats it. Better ISs will give 30 or more days of salary and a flight to your HOR if possible. It would generally cease any other allowances including housing benefits (though you may have housing rights the IS would be required to follow as a property agent or owner).
For an IT that claims Force Majeure it would essentially allow you to nullify the contract without further performance or penalty. If your contract describes a breach penalty for example claiming Force Majeure would vacate that penalty, meaning you wouldnt have to pay.

The practical implications of an IT claiming Force Majeure are minimal, there really isnt a lot an IS can do if you resign regardless of reason. Force Majeure will protect you from various penalties such as those imposed by an IS or from an agency that wants to pursue damages and will release you from obligations (such as getting a new work permit or visa when being released is a requirement). What it wont do is require a premium agency to repp you or an IS to provide you with a positive reference.
The practical implications on the IS side are more significant to ITs, Force Majeure allows an IS to not pay you or compensate you with little recourse or notice. They can send you an email at noon on Friday, deposit whatever is required or provided under regulation or agreement and then wash their hands of you, essentially abandoning you with nothing more. In the past during such events ISs would/could chain/lock the doors and not respond to any form of communication whether phone calls, email or social media. They then notify immigration youre no longer employed with the IS and request cancellation of your visa/work permit.

ITs are almost never given holiday pay or bonuses (full or prorated), that have not yet been earned or are payable.
They are entitled to coin for hours and tasks already worked which would include online teaching. If they dont pay however, including any severance for Force Majeure, you have to arbitrate that. If your entitled to something in a contract and the IS doesnt do it, you have very limited recourse to compel them to do so. If they leave you holding the bag, all you have is a bag.

buffalofan
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Re: Can I force Majeure?

Post by buffalofan »

You would probably have to consult a labor lawyer in your location to get a definitive answer.

In my experience (working in a volatile location many years back) you as an employee cannot claim Force Majeure and just leave - that would be the same as breaking contract. It is the employer who declares force majeure, and if that happens the contract is considered to be successfully completed and immediately voids. You are probably entitled to something in this situation and it is usually in your contract, figure on 1 - 3 months pay and your flight.

As for choosing to stay or go upon Force Majeure (mentioned in the post above), I'm not so sure about that. Since the contract is voided, the school would be under no obligation to provide you with a visa, housing, or anything beyond the Force Majeure terms stated in the contract.

PsyGuy
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Discussion

Post by PsyGuy »

@buffalofan is in error. The IT as an employee is a . to a contract/agreement just as the ISs representative is a . to a contract/agreement. The designation of "employee" does not make the IT a lessor or inferior .. Force Majeure allows a . to vacate or nullify a contract either in full or in part when performance of the contract is rendered impossible for practical purposes. Force Majeure doesnt promise any . anything, its an exit effect, nothing more. A contract that provides one . with a benefit (such as X days of coin) does not provide that providing . with any greater or exclusive power over claiming Force Majeure.
@buffalofans claim that Force Majeure is just breaking contract is no different or superior a claim then the exercise of Force Majeure by an IS as also breaking contract. The employer has no superior or exclusive power than any other ..

Force Majeure effectively relieves all parties of all obligations, even those Force Majeure obligations that are explicitly contained in the contract. If an action is (practically) impossible to perform, its (practically) impossible to perform. If all of the departing ITs are entitled to 1 months coin in severance under Force Majeure and the IS doesnt (practically) have it, there isnt much if any recourse to get it.

shadowjack
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Re: Can I force Majeure?

Post by shadowjack »

Schools can apply force Majeure due to in situ events. For instance, a natural disaster leaves the school in shambles. A . forces major employers to shift people away from the region/country. Schools - good schools - don't use force majeure lightly, but it has been known to happen.

What I am seeing with COVID is a determination to keep schools open, especially given what is happening back in the home countries too. Where I am, there is no intention or desire to declare force majeure. An eye is being kept on enrollment for next year, I suspect, but I don't know for sure. Many schools have made budgeting and purchasing based on expected enrollment that now might be suspect.

As to pay - good schools pay out 3 months and yes, obligations are removed. If the school is going from two classes to one class at each level (and I know a school that DID go from 1200 to 800 students in about two months as the local situation deteriorated), the school will (but not necessarily willingly or joyfully) drop staff.

Right nowI am not hearing from the grapevine that force majeure is being declared anywhere I know of. Anybody else?

PsyGuy
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Discssion

Post by PsyGuy »

ITs may also invoke for Force Majeure. China has issued thousands of Force Majeure certificates.

shadowjack
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Re: Can I force Majeure?

Post by shadowjack »

PG - Good luck with that. China might be issuing them because of how they handled it, but not every country is China or will even think about a 'certificate' when there are so many other things going on.

An IT declaring a situation FM and expecting to get their contractual FM benefits is not something likely to happen.

sid
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Re: Can I force Majeure?

Post by sid »

SJ is correct. So far, lots of rumors about force majeure, but I haven’t seen a single direct claim of a specific school. One guy on another forum tried to claim he knew several specific schools closing down, and he was quickly shouted down by people who knew it was not true.
People are worried. That contributes to speculation and that contributes to rumors. But confirmed closures or layoffs? Nope.
Instead, what I hear from friends around the world is the same as SJ. Schools committed to staying open and keeping staff. Working through the pain knowing this will balance out.

eion_padraig
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Re: Can I force Majeure?

Post by eion_padraig »

There was a lower tier school in Shanghai with Chinese students running international curriculum that have fired teachers that didn't return to China by the date they were set to re-open, even though the school is still running online classes. A friend of mine works there, and she says there was no communication by the school that the school would take that action. My friend feels it's probably because of dropping enrollment, but this has caused my friend to look for other options next year. It's not terribly surprising to me at a place that has Chinese owners and management.

Otherwise, I've not heard of this happening anywhere else.

Eion

PsyGuy
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Reply

Post by PsyGuy »

@SJ

Its not likely to happen, it would require litigation in a Chinese court and thats not going to be cost effective for what amounts to a small amount of damages.
Aside from that its not intended to get your FM comp and benefits its intended to undo the leash and exit the contract without penalties.

wt2015
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Re: Can I force Majeure?

Post by wt2015 »

Guys, there is not a single law expert on these boards. A lot of statements being made here are basically headlines someone glanced at, then spewed it out their behind.

RE: China issuing thousands of force majeure certificates:

"China has issued a record number of force majeure certificates in an attempt to exempt local exporters from fulfilling contractual agreements with overseas buyers as the country struggles with the fallout from the coronavirus outbreak."
https://www.ft.com/content/bca84ad8-586 ... 0f971febbc

Chinese law, specifically relating to force majeure, is very difficult to interpret, even for a qualified law professional. One possibility is, if that language isn't specifically in your contract, it's most likely not something to pursue.

There are several groups on WeChat and Facebook for expats that will usually be able to get you in touch with a local attorney. Probably better to get your facts from a law professional, rather than unfounded opinions and conjecture on a discussion board.

shadowjack
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Re: Can I force Majeure?

Post by shadowjack »

wt2015 - bottom line - if a teacher says, "It's Force Majeur, I want my payout and I'm gone." the school isn't going to pay out the teacher. Schools declare Force Majeur - usually when they get approval by their insurance companies. Admin I've talked to say Force Majeur comes into play when the embassies are closing shop.

Given today's environment of involuntary school closures, but with the ability to deliver online in a way that wasn't there during SARS, schools won't declare FM, they just go to online learning. The good schools have sent their teachers to HOR, the crap schools haven't.

Anybody declared FM and got paid out by their school in the last 3 months?

wt2015
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Joined: Tue Jan 20, 2015 7:42 am

Re: Can I force Majeure?

Post by wt2015 »

shadowjack, I agree! It's just unnerving to see certain people here giving legal advice and making claims of thousands of force majeure certificates being issued, in relation to teachers. I understand that you did not make that claim.

PsyGuy
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Location: Northern Europe

Reply

Post by PsyGuy »

@wt2015

Chinese law on FM is very easy to interpret in China, its 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.

@SJ

The bottom line is that claiming FM and exiting the contract and getting comp, severance from an uncooperative IS are two different questions.
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.

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