Constructive dismissal

[Johnnie99]

Does anyone know if there is a law (such as in the UK) guarding against an employer creating conditions of contract or physical conditions whereupon the employee feels that they are being 'forced', 'coerced' or in some way encouraged to resign rather than being dismissed (which would be the aim of the employer); thereby removing the requirement of the employer to follow normal termination procedure and compensating the employee for unfair or unusual or inappropriate termination?

 

Even though most foreigner contracts are for one year only, as we know, the school cannot simply 'finish' an employee without good reason. This information appears somewhere on the internet.

 

So, again a basic question: are there laws in Thailand applicable to foreign workers preventing constructive dismissal?

Thank you.

[FritsSikkink]

The Thai Labour law:

 

https://www.labour.go.th/index.php/en/labour-laws/47756-labour-protection-act-b-e-2541

 

Edited May 4, 2021 by FritsSikkink

[Preacher]

Contact the labour office. They are there to help you, also in these kind of cases.

[from the home of CC]

could be difficult to prove unless blatant and well documented and possibly witnessed by someone willing to make a statement - just as it is in the west.

[inThailand]

An agreement does have to be renewed by you or the employer, unless the agreement has a renewal clause. What does the agreement say? 

[LukKrueng]

21 hours ago, Johnnie99 said:

Even though most foreigner contracts are for one year only, as we know, the school cannot simply 'finish' an employee without good reason. This information appears somewhere on the internet.

I know of a university that used to employ a foreigner in an office position (not teaching). They always signed a 3 years contract whereas the 1st year was a probation period. Once that year was up they'd let the employee go

[scorecard]

19 hours ago, Preacher said:

Contact the labour office. They are there to help you, also in these kind of cases.

 

Agree. Telephone or visit the Labour complaints centre in the ground floor (very big signage) of the ministry Din Daeng office.

 

Many staff there speak advanced/perfect English and they are very welcoming and good listeners. They are experts at the law and they will go out of their way to help including help to prepare documents etc., where/how to lodge them etc., and they do follow up. 

 

Their level help, support, attitude etc., is the same for both Thai citizens and foreigners. 

 

Good luck.

[Bradmeister]

Is that a Joke, Johnny? 

 

Whats the labor laws in Pakistan, Syria and Nicaragua? 

 

Regardlesd of your homeland, unless you could prove beyond a shadow of a doubt:  that a Crime was being or has been commited with witnnesses, evidence and VDO..... 

 

You're barking up a tree. 

 

 

[thequietman]

Contracts here are not worth the paper that they are written on.

 

One example is that my employer wants 90 days notice from me ( the law states it is 30) if I want to quit, but no such notice from them if they don't want to renew me. 

 

????

[Autonuaq]

for as far as i know even in the west a contract with a set end date finished at that date set.

 

beside that if an employer not want you to work at his place there are several ways that you are unaware of to make it that in Thai court you will be the one that is to be blamed. unless you have very well documented case.

beside you forget an expat in general just leaves after 4-5 years the country. if you are here and have a family then you would not only speak Thai also have been legally married and switched the visa based to non-O based on marriage or based on taken care of Thai child. you are actively changing all to stay here and make it you new country. Pay taxes, plan and build a future.

 

most who stay abroad ire just still leaning back home and there have no actions showing they want to stay as one does when he or she really need to stay.

We all know most forget this and the local know this too. So they use this against the foreigner in the same way as this is done in the west.

 

you want to have success then they also look at this kind of things 

Things that made it in any case one of the additional the imported facts to rule in favor of the foreigner. Why because it is clear one wanted to stay in Thailand and did do all that was needed to be able to stay.

 

 

[kynikoi]

You got comfortable, so comfortable in fact that you completely didn't see the train coming. Now, instead of just moving on you're looking for what? Money? You probably want the job back to save you the effort of bothering to look for another. Seems these posts come up twice a year. Always the same story.

 

You didn't do the job and or you weren't a good fit.

 

One year contract renewal is entirely employers discretion. Less than zero hope for recourse.

 

It is especially rare for schools to simply terminate a teacher. If that happened something clearly wasn't right. They'll let horrible teachers at least finish the term or even year. Then they don't renew. This is by far the least confrontational. The Thai way.

 

Instead of getting your panties in a bunch maybe some self reflection and professional development. Maybe you're just not cut out to work in a school.

Edited May 9, 2021 by kynikoi

[KhaoNiaw]

On 5/5/2021 at 11:22 AM, LukKrueng said:

I know of a university that used to employ a foreigner in an office position (not teaching). They always signed a 3 years contract whereas the 1st year was a probation period. Once that year was up they'd let the employee go

 

They would at least be entitled to 90 day's severance pay in that case. 

 

30 minutes ago, kynikoi said:

One year contract renewal is entirely employers discretion. Less than zero hope for recourse.

 

If they've had a previous renewal, they would be entitled to severance pay.

[kynikoi]

10 minutes ago, KhaoNiaw said:

f they've had a previous renewal, they would be entitled to severance p

 

That's ridiculous. That would mean every employee that a school does not renew a contract is entitled to severance. I forget the rule but the contract needs to be open for multiple years and I believe have a renewal clause. None of my contracts have ever stated anything about renewal.

 

Paddling upstream with no oar.

Edited May 9, 2021 by kynikoi

[KhaoNiaw]

2 minutes ago, kynikoi said:

 

That's ridiculous. That would mean every employee that a school does not renew a contract is entitled to severance. I forget the rule but the contract needs to be open for multiple years and I believe have a renewal clause. None of my contracts have ever stated anything about renewal.

 

Paddling upstream with no oar.

 

Depending on the wording of the contract, the first one may be seen as a fixed-term contract. But if it is renewed the employee would be regarded as a permanent employee, even if they're just given another one-year contract. And entitled to severance pay.   

[kynikoi]

12 hours ago, KhaoNiaw said:

 

Depending on the wording of the contract, the first one may be seen as a fixed-term contract. But if it is renewed the employee would be regarded as a permanent employee, even if they're just given another one-year contract. And entitled to severance pay.   

 

No way. You shouldn't try and get not only this teachers hopes up but every other teacher in Thailand. Schools, especially those paying low end wages don't protect teachers in this manner. Many of these schools also hire teachers with no experience. Sorry, just no. This obligation only may occur on multiple year contracts and even then it may not be written in.

 

Scott should weigh in here.

 

This poster believes that the OP and apparently thousands of teachers by contract and law are due severance pay simply because a school allows a contract to lapse.

[KhaoNiaw]

7 hours ago, kynikoi said:

 

No way. You shouldn't try and get not only this teachers hopes up but every other teacher in Thailand. Schools, especially those paying low end wages don't protect teachers in this manner. Many of these schools also hire teachers with no experience. Sorry, just no. This obligation only may occur on multiple year contracts and even then it may not be written in.

 

Scott should weigh in here.

 

This poster believes that the OP and apparently thousands of teachers by contract and law are due severance pay simply because a school allows a contract to lapse.

 

I think you'll even find previous discussions on this forum. I'm not intending to get anyone's hopes up because chances are you would have to go to court to get it. You can find successful stories on this forum as well I think. By law many teachers are entitled to severance pay if their contract is not renewed and they have not been dismissed for misconduct, especially when they have already had a previous new contract / renewal / extension. It may not be worth the fight for 90 days' pay but if, for example, you've worked somewhere on one or two-year contracts for 20 years, then you would be entitled to 400 days' pay.  It also doesn't matter whether it's written into the contract or not - it's the labour laws and legal precedents already set by the courts that count.

Edited May 10, 2021 by KhaoNiaw

[puchooay]

8 hours ago, kynikoi said:

This poster believes that the OP and apparently thousands of teachers by contract and law are due severance pay simply because a school allows a contract to lapse.

That is correct.

 

This subject has been discussed and confirmed on TV many times.

Edited May 10, 2021 by puchooay

[Scott]

If you think you have been wrongfully dismissed, then it's always a good idea to check with your labor office to see if they believe you have a case.   The schools I deal with have never paid severance to any employee although they have had numerous cases brought against them.  

 

I am aware of a couple of teachers that were dismissed in the middle of their contract and they sued for unfair dismissal and received payment to the end of their contract.  

 

It's always difficult to give a definitive answer to these situations because we often do not know all the facts.  

[scorecard]

On 5/5/2021 at 6:14 PM, thequietman said:

Contracts here are not worth the paper that they are written on.

 

One example is that my employer wants 90 days notice from me ( the law states it is 30) if I want to quit, but no such notice from them if they don't want to renew me. 

 

????

 

Just wondering whether the 90 days comes from a HR manager who has no knowledge or experience or understanding of the labour laws nor basic expectations of a civil society.

 

Why? In Thailand I've come across many HR managers who fit the 'description' I made just above, they assume they can make/change laws to whatever pleases them. (and in many cases they are totally unaware there are labour laws, and in several instances these folks are in managerial positions (like HR Manager, Operations Manager and more, through blatant nepotism. E.g. a case where a 'HR manager' insisted that staff at her company are exempt from having a work permit because of their famous family name.

 

[Ventenio]

experience.  

 

labor office.  report.    calls school.   meeting.   labor people NOT active in the meeting.  they sit there and see if you come to an agreement.  

 

you agree on something, or you don't.

 

if not, you have to sue them in BKK...which you won't do, so you agree on something pretty bad.

 

this was over 5-years ago.......decided it's a pretty worthless route.  

[kynikoi]

8 hours ago, Scott said:

The schools I deal with have never paid severance to any employee although they have had numerous cases brought against them.  

 

Fact. Thank you Scott.

 

 

It's absolutely disingenuous to tell people they are entitled to anything otherwise.

 

Let us also take a moment to reflect additionally on the fact it's not in any EFL contract in Thailand and all foreign teachers for all intents and purposes are always given a one-year contract which entitles* you to NOTHING.

 

Not weren't entitled to it under the contract OR under Thai labor llaw

 

On the face of it it is pure folly to think that every teacher in Thailand deserves severance pay simply for a school deciding to allow a contract to lapse. Absolutely ridiculous.

 

Looking at prior posts bit of a laff how certain many posters were. If this thread keeps on please post case law. Thanks ????

Edited May 11, 2021 by kynikoi

[puchooay]

1 hour ago, kynikoi said:

Let us also take a moment to reflect additionally on the fact it's not in any EFL contract in Thailand and all foreign teachers for all intents and purposes are always given a one-year contract which entitles* you to NOTHING.

Incorrect, as has been shown many times on this forum.

 

Just because Scott's school have never paid does not mean that teachers are not entitled.

 

It is labour law and is not restricted to foreign teachers.

[kynikoi]

42 minutes ago, puchooay said:

Incorrect, as has been shown many times on this forum.

 

Just because Scott's school have never paid does not mean that teachers are not entitled.

 

It is labour law and is not restricted to foreign teachers.

 

Please post the law.

 

Since you are absolutely insistent on the matter. Present the evidence.

 

The law and the "many times" that foreigners on a one year contracts have been paid  severance of ????? some random and arbitrary amount because the public school chose to allow their contract to lapse.

 

Because it didn't happen. Ever.

 

Ever.

 

The notion that all foreigners that do not have contracts renewed are entitled to ?? especially when it's not even written into their contracts is patently absurd. The fact that not one but many teachers had taken Scott's school to court and LOST clearly demstrates it is not law. If it were the teacher must be paid assuming they completed the contract.

 

All you can do is continue to repeat yourself. That does not an argument make.

 

My wife who is a downtown BKK office worker has just told me that Thais working annual contracts are considered freelance.

Edited May 11, 2021 by kynikoi

[puchooay]

30 minutes ago, kynikoi said:

 

Please post the law.

 

Since you are absolutely insistent on the matter. Present the evidence.

 

The law and the "many times" that foreigners on a one year contracts have been paid  severance of ????? some random and arbitrary amount because the public school chose to allow their contract to lapse.

 

Because it didn't happen. Ever.

 

Ever.

 

The notion that all foreigners that do not have contracts renewed are entitled to ?? especially when it's not even written into their contracts is patently absurd. The fact that not one but many teachers had taken Scott's school to court and LOST clearly demstrates it is not law. If it were the teacher must be paid assuming they completed the contract.

 

All you can do is continue to repeat yourself. That does not an argument make.

 

My wife who is a downtown BKK office worker has just told me that Thais working annual contracts are considered freelance.

The law states :

 

"If the position is not related to a specific project and temporary in nature, then the employer may be required to pay severance pay depending on how long the employee has worked. Special severance must be paid if employees are made redundant due to technological advances. The law does not state the amount but it is in addition to the ordinary severance pay under Section 118. Special severance pay is also due if the employer does not give the employee at least 60 days’ notice before termination."

 

Note it is the position and not the contract that is deemed temporary. If the employer simply says to the employee " your contract is up, goodbye" without 60 days notice then severance may be paid. Likewise, if the employer says "your contract is up, goodbye" and subsequently employs someone else in the same position, severance may be paid.

[kynikoi]

1 hour ago, puchooay said:

"If the position is not related to a specific project and temporary in nature, then the employer may be required to pay severance pay depending on how long the employee has worked.

The position is effectively temporary. We are freelancers signing contracts annually.

The employer MAY

 

Or may not lol. Up to them.

The employee is employed one year (or even ten months).

 

1 hour ago, puchooay said:

if the employer does not give the employee at least 60 days’ notice before termination

 

They are not terminating but allowing a contract to lapse. Not renewing is NOT terminating. This seems to be a thing with you. Terminating in the vernacular is being fired.

 

Your post is not Thai law. It's just some randomness copied from a farang legal website or worse yet a forum. It's absolutely nothing and again the fact that Scott's very large school that had many teachers take them to court which by his recollection all lost is the correct affirmation.

 

Termination is being fired. It's quite simple.

 

Even being fired a teacher would have an uphill battle getting severence but that we know is possible in a miniscule number of cases.

 

I'm done here. Let the crappy teachers that don't get their contracts renewed or actually are terminated sort it out for themselves. Maybe time better spent on becoming a better teacher so it doesn't happen again.  Naw...

[puchooay]

4 hours ago, kynikoi said:

The position is effectively temporary. We are freelancers signing contracts annually.

The employer MAY

 

Or may not lol. Up to them.

The employee is employed one year (or even ten months).

 

 

They are not terminating but allowing a contract to lapse. Not renewing is NOT terminating. This seems to be a thing with you. Terminating in the vernacular is being fired.

 

Your post is not Thai law. It's just some randomness copied from a farang legal website or worse yet a forum. It's absolutely nothing and again the fact that Scott's very large school that had many teachers take them to court which by his recollection all lost is the correct affirmation.

 

Termination is being fired. It's quite simple.

 

Even being fired a teacher would have an uphill battle getting severence but that we know is possible in a miniscule number of cases.

 

I'm done here. Let the crappy teachers that don't get their contracts renewed or actually are terminated sort it out for themselves. Maybe time better spent on becoming a better teacher so it doesn't happen again.  Naw...

Thanks for your insight. Sadly that is all it is. Sadly, for you and your insistence that teachers are entitled to nothing, I am speaking facts. Backed by instances that I know of where teachers gave wine cases.

 

You did not read my whole post, I am guessing, as you must the point that it is not the contract that is at point here. It is the position. That is that fact. If someone is dismissed, or their contract runs out but they were not given notice of this and the position is still there then the teacher is entitled by Thai law.

[KhaoNiaw]

7 hours ago, kynikoi said:

My wife who is a downtown BKK office worker has just told me that Thais working annual contracts are considered freelance.

 

Freelance is something completely different. That means they are self-employed, taking care of their own tax and social insurance. Otherwise, it may well be that someone on a one or two-year contract is on a fixed-term contract and not entitled to severance pay. But if they are employed continuously after the period of that contract, it may no longer be viewed as a fixed-term contract. If your wife is not actually employed on a freelance basis, then you should make sure she is fully acquainted with the Thai labour laws. Also, of particular interest, the latest retirement laws, which I believe many companies may not yet be fully aware of. 

Someone made a valid point earlier, in that court precedents are not binding in Thailand as they are in many other countries, and that maybe why there are some who win and some who lose. You are completely wrong if you say nobody has ever won and Scott has actually commented on past threads on this forum where people have successfully taken schools to court. 

 

Plenty of English-language links to look for further information. Here's a couple to get started on:
Fixed-term Employment Contracts in Thailand

Debunking the myths of fixed-period employment contracts  

"... if an employer enters into multiple, back-to-back, fixed-term contracts with the employee, the court may believe that the employer actually intended to hire the employee on a permanent basis. The court may, by its discretion, invalidate the provisions of the contract that establish a fixed term of employment."

 

So, there certainly is room in the law for the discretion of the court but many have been successful, presumably on the grounds quoted above. So I would guess the longer you're employed on your one or two-year contracts, the more likely it will be that the court will find in your favour.

Edited May 11, 2021 by KhaoNiaw

[kynikoi]

4 hours ago, KhaoNiaw said:

You are completely wrong if you say nobody has ever won and Scott has actually commented on past threads on this forum

3 hours ago, KhaoNiaw said:

 

Freelance is something completely different. That means they are self-employed, taking care of their own tax and social insurance. Otherwise, it may well be that someone on a one or two-year contract is on a fixed-term contract and not entitled to severance pay. But if they are employed continuously after the period of that contract, it may no longer be viewed as a fixed-term contract. If your wife is not actually employed on a freelance basis, then you should make sure she is fully acquainted with the Thai labour laws. Also, of particular interest, the latest retirement laws, which I believe many companies may not yet be fully aware of. 

Someone made a valid point earlier, in that court precedents are not binding in Thailand as they are in many other countries, and that maybe why there are some who win and some who lose. You are completely wrong if you say nobody has ever won and Scott has actually commented on past threads on this forum where people have successfully taken schools to court. 

 

Plenty of English-language links to look for further information. Here's a couple to get started on:
Fixed-term Employment Contracts in Thailand

Debunking the myths of fixed-period employment contracts  

"... if an employer enters into multiple, back-to-back, fixed-term contracts with the employee, the court may believe that the employer actually intended to hire the employee on a permanent basis. The court may, by its discretion, invalidate the provisions of the contract that establish a fixed term of employment."

 

So, there certainly is room in the law for the discretion of the court but many have been successful, presumably on the grounds quoted above. So I would guess the longer you're employed on your one or two-year contracts, the more likely it will be that the court will find in your favour.

 

Freelance work is not highly different and they are in many cases given contracts.

 

Again, this is not the law. It's some farangs opinion of it which is again conjecture and speculation of high order.

My wife is a FTE. Retirement has no relevance to the discussion.

 

If there is no law and no respect for precedent this is not an argument for being *entitled* to severence pay. It is an argument for chance.

If the employer hires employee on multiple fixed contracts the court may believe...

No, they won't. First, even the blurb uses MAY and second this is not what the court will find at all.

Perhaps a Thai having been employed 5-10 years. Not a bad teacher getting d foreign not getting his contract renewed.

 

The court may invalidate...this is where an employer has worked an employee for years on a less than FTE basis to avoid paying salary, benefits and severance. This is not the same. Ten months or ten years.

 

4 hours ago, KhaoNiaw said:

So, there certainly is room in the law for the discretion of the court but many have been successful, presumably on the grounds quoted above.

 

Your presumption is amazing. It's not based on Thai law or any specific case. It's based like the other poster on internet opinion which is full of ironically... presumption.

 

4 hours ago, KhaoNiaw said:

Scott has actually commented on past threads on this forum

 

What Scott has stated on THIS thread is he is not aware of any teacher (in his very large private school system) that has been successful in suing for severence. Further, Scott is or had held an administrative position which would allow even better observation of this issue than a random teacher.

 

4 hours ago, KhaoNiaw said:

I would guess the longer you're employed on your one or two-year contracts, the more likely it will be that the court will find in your favour.

 

Well, we can agree here. Five two-year contracts you may have something. Being a crummy teacher that did not get their one year contract renewed, bitter, angry. Not so much.

 

These arguments are weak.

[kynikoi]

4 hours ago, KhaoNiaw said:

 

Freelance is something completely different. That means they are self-employed, taking care of their own tax and social insurance. Otherwise, it may well be that someone on a one or two-year contract is on a fixed-term contract and not entitled to severance pay. But if they are employed continuously after the period of that contract, it may no longer be viewed as a fixed-term contract. If your wife is not actually employed on a freelance basis, then you should make sure she is fully acquainted with the Thai labour laws. Also, of particular interest, the latest retirement laws, which I believe many companies may not yet be fully aware of. 

Someone made a valid point earlier, in that court precedents are not binding in Thailand as they are in many other countries, and that maybe why there are some who win and some who lose. You are completely wrong if you say nobody has ever won and Scott has actually commented on past threads on this forum where people have successfully taken schools to court. 

 

Plenty of English-language links to look for further information. Here's a couple to get started on:
Fixed-term Employment Contracts in Thailand

Debunking the myths of fixed-period employment contracts  

"... if an employer enters into multiple, back-to-back, fixed-term contracts with the employee, the court may believe that the employer actually intended to hire the employee on a permanent basis. The court may, by its discretion, invalidate the provisions of the contract that establish a fixed term of employment."

 

So, there certainly is room in the law for the discretion of the court but many have been successful, presumably on the grounds quoted above. So I would guess the longer you're employed on your one or two-year contracts, the more likely it will be that the court will find in your favour.

 

Myths demystified

 

1 - my contracts have always specified an end date. 365 days.

 

2 - In nearly ten years of working here I have never renewed or extended. It's always a new contract 

 

3 - Irrelevant. The employer is not tterminating(again) the contract is allowed to lapse. There is no action on the part of the employer

 

4 - This is lengthy but none of the instances cited are relevant. Further, the author uses as example a construction worker. Doubt many read BKK post but whatever. Could have just as easily used a teacher on a one year contract. It was not. #4 also discusses termination issues.

 

The article is more or less about early termination. Not being given a new, fresh contract is entirely different.

 

It's not that the article is so off

 

It's your application and interpretation of it

Edited May 11, 2021 by kynikoi

[kynikoi]

7 hours ago, puchooay said:

Backed by instances that I know of where teachers gave wine cases.

 

Which in numerous posts are still yet to be cited.

 

What if the school simply tells the court notice was provided?

 

What if a few weeks are given which I'm certain in most if not all cases it is. Then, even by your flawed thinking it's just a matter of a few days here or there. With the arbitrariness of Thai courts it's again very difficult to see how they'd side with the petitioner.

 

Sixty days lol. Is THAT written anywhere bbecause that is an incredibly long amount of time. More than 15% of the entire one year contracted period. Is than sixty days for one year, ten, twenty? One month?!

 

One month.