論要派單位與派遣單位之工作場所性騷擾損害賠償責任－兼評臺灣臺北地方法院101年度訴字第1523號判決、臺灣臺北地方法院101年度勞訴字第126號判決等民事判決

派遣勞工於工作場所服勞務過程中若遭受性騷擾時，應當向何人救濟？此涉及要派單位與派遣單位各自負擔何等責任。又在立法院修正性別工作平等法第3條第3款雇主範圍以前，要派單位常主張其非契約上之雇主，毋庸負擔性別工作平等法所課予雇主之性騷擾防治等義務，恐使勞工求償無門，抑或是使派遣單位負擔其無法負荷之義務。有鑑於此，本文嘗試從民法第188條及性別工作平等法第27條等規定之比較出發，並從中驗證二者之歸責原理不同，前者係基於損益同歸原則概念而制定；後者則是基於貫徹保護受僱者權益之觀點而立法。在派遣關係中，對派遣勞工性騷擾之行為人大多係要派單位之勞工，此際即便要派單位無需負擔性騷擾防治義務，被害派遣勞工仍得主張其應負民法第188條之僱用人損害賠償責任。性別工作平等法第3條第3款經立法院修正而擴大雇主之範圍，雖未明文將要派單位擬制為同法第27條以下之雇主，惟透過體系解釋，仍可得出其亦應負損害賠償責任之結論；至於派遣單位與要派單位應如何分別負擔「雇主責任」與「擬制雇主責任」，本文建議可依二者對工作環境等各類控管能力加以區分。惟要派單位與派遣單位之責任範圍為何，並非同法第27條第1項損害賠償構成要件，而應定位為同條項但書之免責事由，於此訴訟上被害勞工無須舉證證明。

關鍵字

工作場所性騷擾；侵權行為損害賠償；雇主責任；性別工作平等法；派遣關係

並列摘要

When a dispatched laborer suffers from sexual harassment during his or her work, whom can he or she ask for relief? This is related to what liabilities user companies and dispatched companies should take respectively. Before the amendment in 2014 of no.3-3 in the Act of Gender Equality in Employment, user companies often claim that they are not employers of dispatched laborers. Hence, they did not need to take the responsibilities in the Act of Gender Equality in Employment, as the judgment mentioned in this article. (No.1523 Judgement (2012) of Taipei District Court) This might lead to the conclusion that either the laborer could not get any relief or dispatched companies take unreasonable liabilities. This article tries to compare no.188 in our civil law and no.27 in the Act of Gender Equality in Employment, and finds out that the imputabilities of the two stipulations are found different. While the former is based on vicarious liability, the latter is based on the principle of protecting laborers. Therefore, the constituent elements and legal excuses should be different. Under dispatched employment, the sexual harassment doers are often other laborers in user companies. In this case, even though the user companies do not need to take the responsibilities in the Act of Gender Equality in Employment, they are still liable under no.188 in our civil law. With the expanding range of the definition of employers in the Act of Gender Equality in Employment, user companies need to take the responsibility to prevent sexual harassment. Although there is no written fictio for liabilities under no.27 in the Act of Gender Equality in Employment that it is unclear for user companies to take the liabilities on this Act, after systematical explanation, it should be considered that they should be liable, too. Dispatched companies and user companies respectively take employer liability and fictio-employer liability, which should be different according to their own controlling power over the working environment.