Hiring And Firing

[fanciman]

Legally, what happens in Thailand in this sort of situation:

Somebody is hired, put on a monthly rate and commences a trial period of a few months. At the end of this time, if both parties are mutually agreeable, the person continues on with the standard contract.

At the end of the 3 months, the company needs to shed staff / reinvent itself.

What happens to the people on the 3 month contract?

What sort of compensation could they expect to receive/demand?

If the company creates a new job, with different pay, location (and maybe working conditions) and offers this job instead of the old one, how does that put a twist on things?

Thank you v much indeed for your help with this one!

[Martin_F]

Compensation for loss of office is specified in Thai labor law.

There are different bands for different periods of time.

Regarding your situation with an employee on probation if thry are still on probation then the contract can be ended in line with probation otherwise if they are out of probation and a full time employee then the rules mentioned in my first para apply.

[fanciman]

Thanks, Martin F.

Does anybody know what the crucial lengths of contract are for the different bands?

[Martin_F]

From http://www.ilo.org/public/english/dialogue...es/thailand.htm

• 120days-1yr=30 days
  
• 1-3yrs =90 days
  
• Over 3yrs=180 days
  

and there are special rules for restructuring (see below).

Severance pay

The employer must pay compensation to the employee when terminating the contract of employment, or when the employer commits any act to prevent the employee from continuing to work or discontinues payment of wages to this end. This compensation is also due when the termination is the result of the employer’s inability to continue business operations. The compensation is not due upon termination of a contract concluded for a definite period (sec. 46, NMI), or when the employee:

has been dishonest on duty;

has deliberately committed a criminal offence against the employer;

has intentionally caused damage to the employer;

has violated working rules or lawful orders from the employer;

has been absent for three consecutive working days without justification;

has caused serious damage to the employer due to negligence; or

has been sentenced to imprisonment (sec. 47, NMI).

The provisions on compensation apply to fixed-term employment up to a maximum of two years on a temporary project or seasonal work which is not part of the employer’s core business, provided that the employment relationship has been put in writing from the beginning (sec. 46, NMI).

The amount of compensation depends on the length of service. For an uninterrupted period of service between 120 days and one year the compensation for time-rate and piece-rate work alike amounts to the last 30 days’ wages. For a period of service between one and three years, compensation equals the last 90 days’ wages. For a period of service of over three years the amount of compensation corresponds to the last 180 days’ wages. The period of service includes holidays, leave days and days that the employee has been exempted from work for the convenience of the employer. Discontinuity of the employee’s service intended by the employer to deprive the worker of his or her rights is disregarded, regardless of the assignment of the employee and the length of the gap between assignments (sec. 75, NMI).

In the event of retrenchment following restructuring, an employer who does not give notice or gives notice less than 60 days in advance must pay compensation in lieu of notice, equal to the last 60 days’ wages (sec. 46bis, NMI). This compensation substitutes for the normal compensation in lieu of notice provided for in the CCC. If the employee has been employed for at least six years, however, the employer must pay additional compensation equal to 15 days’ wages for every year of employment, with a maximum amount equal to 360 days’ wages. With respect to this additional compensation, a period of work of more than 180 days constitutes a year (sec. 46ter, NMI).

Avenues for redress

An employee whose employment has been terminated following an unfair practice by the employer may file a complaint with the Labour Relations Committee[3]within 60 days of such violation (sec. 124, LRA). This Committee will issue an award and an order within a further 90 days, unless the Minister has decided to extend the period for decision (sec. 124, LRA). The employee can also file a criminal complaint against the employer, but only after the Labour Relations Committee has passed an arbitration award and the employer has failed to comply with the Committee’s order (sec. 127, LRA).

Disputes regarding termination of employment must be brought before a labour court. This can be the Central Labour Court if the place of work is Bangkok Metropolis or its surrounding provinces, a regional or provincial labour court if one has been established in the region or province of the place of work, or a Court of First Instance if the place of work is not situated within the territorial jurisdiction of any labour court (secs. 5, 6, 7 and 9, ALC). Administrative remedies provided under the NMI and LRA must be exhausted, however, before a lawsuit may be filed with a labour court (sec. 8, ALC).

Employers and employees may give power of attorney to the employers’ association or the labour union of which they are members, or to the competent officer empowered to take legal action under the NMI or LRA, to proceed on their behalf (sec. 36, ALC).

If the labour court considers that an employee has been unfairly dismissed, the court may order reinstatement at the level of remuneration applying at the time of dismissal (sec. 49, ALC). If a labour court considers that the cooperation between employer and employee has been disrupted beyond repair, the court may fix an amount of damages as compensation to be paid by the employer by taking into consideration the age of the employee, the length of service, the hardship of the employee at the time of dismissal, the cause of the dismissal and the compensation the employee is entitled to receive (sec. 49, ALC).

Any judgement or order is binding only upon the parties in the proceedings, unless the court prescribes that the judgement be also binding upon other employers and employees having a joint interest in the case (sec. 53, ALC). A judgement or order can be appealed to the Supreme Court within 15 days of its pronouncement, but only on points of law (sec. 54, ALC).

Edited March 25, 2007 by Martin_F

[soundman]

Whilst there is a whole book on thai workplace standards & agreements, about 100 odd pages from memory, whilst there are many guidelines & laws, in the real world who really follows them?

I hire on personal interview basis for factory workers, most times education & work experience is brought up during the interview, however, most of my descisions are purely gut instict, with trial periods involved.

I then make sure I have all up to date personal info. (an absolute must), and then have the prospective employee sign a more suitable workplace agreement. Whether this would stand up in court, I nor my lawyer can really say, but it makes firing a lot easier.

As to paying out termination pay & redundancy, no way. If I've terminated someone, they have abviously done something wrong, been lazy or made no attempt to fit into the production team. I am not going to give them a "bonus" for bad work etc.

I haven't had to make someone redundant, but I'm sure if I did it would be through lack of cash in the business. Once again no money....

If the individual wants to take me to court to get a few thousand baht that is fine. It will cost them more than they will receive in most cases.

Cheers,

Soundman.

[thaigene2]

Also check the LPA - Labour protection Act 1998 (i think). The Labour Court is actually pretty good at upholding these laws. Even farangs who've been 'screwed' by Thai employers tend to get their compensation (though not so sure about migrant workers from burma, etc) - anyway be forewarned - should you be one of those dodgy, nefarious type employers!!

[stuandchris]

Whilst on this thread although a slightly different thread.

If I hire a maid, gardener etc and their work is not up to scratch even though they are paid well, is there a good way to get rid without them losing face and being offended without the normal pissed off through not having that job?

[TerryLH]

"If the individual wants to take me to court to get a few thousand baht that is fine. It will cost them more than they will receive in most cases."

You might be wrong about that. As already mentioned above, the Labor Office is employee friendly and will help employees, IF the employee has anything due them.

[soundman]

"If the individual wants to take me to court to get a few thousand baht that is fine. It will cost them more than they will receive in most cases."

You might be wrong about that. As already mentioned above, the Labor Office is employee friendly and will help employees, IF the employee has anything due them.

Maybe so.

However, do you really think an employee, who has misssbehaved, got fired, & then would have to make numerous trips from the provinces to the law offices, submit sworn statements & then turn up to court hearing for a maybe, maybe verdict would go through all that bother for a few thousand baht.

They have enough trouble getiing to work on time, let alone every day of the week.

Cheers,

Soundman.

[TerryLH]

"...IF the employee has anything due them."

If you follow the Labor Laws you can terminate for cause and the employee won't have anything due them.

"...most of my descisions are purely gut instinct..."

From some of your other posts it appears that your gut hasn't always worked out as well as you'd have liked it to.

[soundman]

"...IF the employee has anything due them."

If you follow the Labor Laws you can terminate for cause and the employee won't have anything due them.

"...most of my descisions are purely gut instinct..."

From some of your other posts it appears that your gut hasn't always worked out as well as you'd have liked it to.

Lets talk about the real world..... Not some far off fancy place where everything is lined with rose petals..

You may have read some of the problems I have encountered in other posts. Good, I hope you may have got some good insight out of them.

Let me point out (as I have pointed out in other posts which you probably would have read anyway) that it is all a numbers game. Have two staff in your business - not many problems. Have fifty staff in your businesss - potential for many problems.

I have compared my business to many other thai business's of similar size. We actually are doing OK in the staff "problems" department compared to most.

As for teminating a staff member for stealing (for example). According to the labor laws you wolud need irrefutable proof. (something you could take to the police). A video - surveilance system showing a staff member walking out with some hardware is not proof enough - unless you can come up with the actual item that was stolen. So you fire the person anyway, but cant, according to the police actually prove the individual stole anything.

Just out of curiosity, are you in an actual postion to make comments? Do you actually run a business with more than five staff members in Thailand? If you do I would genuinely like to hear some predicaments you have been caught up in, & maybe we can exchange some "war" stories.

If you are just a keyboard warrior, well....

Soundman.