Severance Pay

[stament]

Not sure where to ask this question.   Do NGOs also have to abide by s118 of the Employment Act with regards to severance payments due to employees or are they exempt?

 

Thanks in advance.

 

[stament]

To be clear, severance pay with regards to being made redundant.

 

 

[impulse]

Have you been on a legal work permit and your NGO paying into the social security system on your behalf?

 

I don't know your answer, but the details like that may matter. 

 

In any case, make sure you look into staying in the social security system if you're planning to stay in Thailand.  Again, details matter.  But it could provide you with some level of health care for a piddly monthly payment.

 

Hopefully, others will chime in that have more experience.

Edited March 28, 2022 by impulse

[Kinnock]

My (non lawyer) understanding is that it applies to anyone formally employed in Thailand, including foreigners.  NGO's do not have a special exemption.

 

But you'd need an employment contract and Work Permit.  Paying social security is not a factor.

 

One month per year of employment, unless you've committed an illegal act at work.

 

[impulse]

34 minutes ago, Kinnock said:

My (non lawyer) understanding is that it applies to anyone formally employed in Thailand, including foreigners.  NGO's do not have a special exemption.

 

But you'd need an employment contract and Work Permit.  Paying social security is not a factor.

 

One month per year of employment, unless you've committed an illegal act at work.

Good info, but I'm curious whether anyone can work legally without paying into SS? 

 

And are you sure the formula is that simple, one month per year?  As I recall, my contract was hastily ended a week before I qualified for another 2 months of severance, based on the increments.  Complicated by the fact that the 30 day termination notice would have sent me into the next increment, but that's a pet peeve for another topic...  

 

I'm not asking because I think you're wrong, just trying to get a clearer picture.  My brain has leaked a lot since I left Thailand, every night when I sleep.  For the OP's purposes, your answer is that NGO's aren't exempt.  But others may find this thread when they use the search function in 2 years...

[blackcab]

NGOs don't have any exemption from the law. They have to pay severance in the same way as any other employer. The only exception I can think of would be if the NGO was in some way part of a diplomatic mission or UN type organisation, in which case while the law would still apply their organisation could not be made to pay should they decline to do so.

 

It has been said that the employee must have a contract or a work permit. In fact this is not true at all. The Labour Court takes all circumstances into account when deciding if someone was employed, and believe me they are not easily fooled by employers.

 

Consider that if a work permit or a contract was required then any employer could completely avoid prosecution by denying their employees these documents.

 

In reality the Labour Court does not work that way, and the Court would take an especially dim view of an employer in these circumstances.

 

Shame on the employer for not providing or requiring documentation provided by law, not on the employee for being put in that position.

[BritTim]

Your local labour office will usually be helpful in identifying your entitlements when your employment is terminated, and also in ensuring you receive them if your employer tries to stiff you. This often surprises people who assume that the labour department would side with the employer, especially in Thai versus foreigner disputes. However, experience has shown labour offices generally work hard to ensure fairness.

[Ralf001]

4 hours ago, Kinnock said:

 

One month per year of employment.

 

Yeah, Nah.

 

 

 

[stament]

1 hour ago, Ralf001 said:

Yeah, Nah.

 

 

 

Thanks for sharing, I also found this but I was told by my organisation that it doesn't apply to NGOs hence my question as I am a little suspicious to say the least.... 

[stament]

4 hours ago, blackcab said:

NGOs don't have any exemption from the law. They have to pay severance in the same way as any other employer. The only exception I can think of would be if the NGO was in some way part of a diplomatic mission or UN type organisation, in which case while the law would still apply their organisation could not be made to pay should they decline to do so.

 

It has been said that the employee must have a contract or a work permit. In fact this is not true at all. The Labour Court takes all circumstances into account when deciding if someone was employed, and believe me they are not easily fooled by employers.

 

Consider that if a work permit or a contract was required then any employer could completely avoid prosecution by denying their employees these documents.

 

In reality the Labour Court does not work that way, and the Court would take an especially dim view of an employer in these circumstances.

 

Shame on the employer for not providing or requiring documentation provided by law, not on the employee for being put in that position.

Many thanks, what you said is also my understanding. I have a work permit and an initial contract I signed. I didn't sign the extension as I raised the issue that one of the benefits offered to other staff was missing, the air ticket home. Having done quite a bit of research I read that not having a signed contract doesn't matter as the court will look at the facts, i.e me working there and getting paid regularly.

 

However, my main issue is that they refer to me as a consultant in my emoyment contract. Having read up on this on the internet, it seems that the court will not look at this directly but will look at other things to determine if I am in fact an employee. I am registered for Social Security, on the payroll, receive sick and annual leave, attend staff meetings and are subject to annual appraisals like all other staff. I was also given the HR manual.  The sole reason I am referred to as a consultant are due to their internal rules which prevents them from employing foreigners. However, my argument is that that is their rules not the Thai rules and it's the Thail Law which prevails.....

 

They seem to be very angry that I am trying to affirm what I believe are my rights under Thai law. Should a Thai person be made redundant they would be entitled to redundancy but they argue I am not entitled for the aforementioned reasons.  I know the Thai law looks at the substance of the contract but then they quoted me this exemption for NGOs and non profit making organisations which seemed bizarre.

 

Thanks all.

 

I do plan on going to the labour office but posted on here first to get more info.

 

????

 

[Hanuman2547]

13 minutes ago, stament said:

Thanks for sharing, I also found this but I was told by my organisation that it doesn't apply to NGOs hence my question as I am a little suspicious to say the least.... 

Sounds like your NGO is trying to skip out on paying severance pay.  

[stament]

7 hours ago, Kinnock said:

My (non lawyer) understanding is that it applies to anyone formally employed in Thailand, including foreigners.  NGO's do not have a special exemption.

 

But you'd need an employment contract and Work Permit.  Paying social security is not a factor.

 

One month per year of employment, unless you've committed an illegal act at work.

 

I understand that not all employers have SS for their employees, indeed many private schools don't although government schools do, but I am aware there are different rules for schools which isn't the case for me.

 

My understanding regards Social Security is that foreigners cannot choose to pay into it themselves voluntarily unless they have already been in the SS system for 13 months and leave the organisation and then elect to pay SS voluntarily themselves which is the sensible thing to do.

 

The fact that my employer has paid my SS I hope would lead me to be looked upon as an employee.  Are employers allowed to register consultants in the SS I wonder?

Edited March 29, 2022 by stament

[stament]

1 hour ago, Hanuman2547 said:

Sounds like your NGO is trying to skip out on paying severance pay.  

That's my feeling too but these things are never clear-cut hence my question.  

 

Thanks everyone for your responses.

[blackcab]

3 hours ago, stament said:

However, my argument is that that is their rules not the Thai rules and it's the Thail Law which prevails.....

 

Yes, exactly.

[blackcab]

2 hours ago, stament said:

Are employers allowed to register consultants in the SS I wonder?

 

It's not optional. Employees are required to register any employee who receives payment. Job title is irrelevant. Essentially, if the Ministry of Labour has granted a work permit, that's what counts.

 

In the case of a foreigner, Social Fund must be paid or your extention of stay will not be processed.

[stament]

16 minutes ago, blackcab said:

 

It's not optional. Employees are required to register any employee who receives payment. Job title is irrelevant. Essentially, if the Ministry of Labour has granted a work permit, that's what counts.

 

In the case of a foreigner, Social Fund must be paid or your extention of stay will not be processed.

Thanks.  So if my understanding is correct, "consultants" who are issued a work permit and have a valid visa are required to be entered into the social security system in addition to "normal" employees?

 

Edited March 29, 2022 by stament

[blackcab]

23 minutes ago, stament said:

Thanks.  So if my understanding is correct, "consultants" who are issued a work permit and have a valid visa are required to be entered into the social security system?

 

A company has 15 days to register an employee for Social Fund after they are hired.

 

Job titles do not matter to the Social Fund Office.

 

If you were a consultant then you would be working for a consulting firm.

 

That consulting firm would have a service contract with the NGO.

 

You would not receive an employment contract from the NGO.

 

In such cases it would be abundantly clear who was the employer, who was the employee and who was the third party the employee consulted for.

 

It has to be this way. As as foreigner you cannot be a self-employed consultant.

[blackcab]

Moved to the Jobs and Business forum.

[stament]

24 minutes ago, blackcab said:

 

A company has 15 days to register an employee for Social Fund after they are hired.

 

Job titles do not matter to the Social Fund Office.

 

If you were a consultant then you would be working for a consulting firm.

 

That consulting firm would have a service contract with the NGO.

 

You would not receive an employment contract from the NGO.

 

In such cases it would be abundantly clear who was the employer, who was the employee and who was the third party the employee consulted for.

 

It has to be this way. As as foreigner you cannot be a self-employed consultant.

Many thanks for the detailed answer.  This leads me to be even more convinced that I am an employee and not a consultant in the eyes of Thai employment law.  Let's hope so!

 

I did say to them that if I was a consultant they would have had to deduct 3% withtholding tax, etc as what happens when I sometimes do some part-time tutoring and then I submit my returns to the tax office and pay the balance, which is what I need to do today with the 31st March deadline fast approaching!

 

 

[stament]

25 minutes ago, blackcab said:

Moved to the Jobs and Business forum.

Thanks, I wasn't sure where to post, thought as it was a little bit work permit related perhaps where I posted it.

 

Much appreciated.

 

[blackcab]

1 minute ago, stament said:

I did say to them that if I was a consultant they would have had to deduct 3% withtholding tax...

 

Yes and no. If you were a consultant you would have to be employed by a company that then offered your services to third parties.

 

The NGO would pay the consulting firm a service fee (which would probably cover more than your cost of employment) and the NGO would deduct withholding tax from the payment.

 

The difference is that the withholding tax form would be in the name of the consulting firm who issued the invoice for your services, and not in your own name.

 

As a foreigner, how could you issue an invoice in your own name when you are not allowed to be self employed?

[stament]

6 minutes ago, blackcab said:

 

Yes and no. If you were a consultant you would have to be employed by a company that then offered your services to third parties.

 

The NGO would pay the consulting firm a service fee (which would probably cover more than your cost of employment) and the NGO would deduct withholding tax from the payment.

 

The difference is that the withholding tax form would be in the name of the consulting firm who issued the invoice for your services, and not in your own name.

 

As a foreigner, how could you issue an invoice in your own name when you are not allowed to be self employed?

Many thanks for confirming.  It seems very clear to me now then that I must be an employee despite what my employer keeps saying and as such I should be covered by employment law, i.e. be covered for severance.

 

For my part-time teaching I don't have a company set-up but my understanding is that this is an exception for such work and I merely pay the balance of tax due at the end of the tax year.

[blackcab]

11 minutes ago, stament said:

...I merely pay the balance of tax due at the end of the tax year.

 

The Revenue Department doesn't especially care about your employment status. All they are interested in is the collection of tax.

[FritsSikkink]

1 hour ago, stament said:

Many thanks for the detailed answer.  This leads me to be even more convinced that I am an employee and not a consultant in the eyes of Thai employment law.  Let's hope so!

 

I did say to them that if I was a consultant they would have had to deduct 3% withtholding tax, etc as what happens when I sometimes do some part-time tutoring and then I submit my returns to the tax office and pay the balance, which is what I need to do today with the 31st March deadline fast approaching!

 

 

Consultant is just a job title. If they would like to argue that you are a freelancer, they wouldn't pay you a salery but you would send them invoices from your company. Like you said go to the Labour Office and they won't have a chance in court at all. If they have any sense they will pay you without having to go to court as they risk a hefty fine,

Edited March 29, 2022 by FritsSikkink

[Sydebolle]

Only diplomatic entities (i.e. Embassies, Consulates) are exempted from any legality of and in Thailand. 
So, if your NGO has a diplomatic status, then the Labour Protection Act, paragraph 118 does NOT apply. Should however your employment agreement refer to arbitration in Thailand with an eventual reference to applicable Thai law, then 118 applies. If the NGO has no diplomatic status, then 118 applies anyway. 
Good luck; if you need some legal advice, I can give you a contact who fished out everything possible back in the day. Apart from severance pay as per 118 you can, if you are NOT at fault whatsoever, go for "unfair dismissal" which will - if luck prevails - pour in another month's salary per year of employment. PM me for more if you need ???? 

[stament]

3 hours ago, blackcab said:

 

The Revenue Department doesn't especially care about your employment status. All they are interested in is the collection of tax.

Ok, just paid my tax due.

[stament]

3 hours ago, FritsSikkink said:

Consultant is just a job title.

Exactly what I said. They can call me a cleaner but it doesn't mean I am cleaning.

[stament]

2 hours ago, Sydebolle said:

Only diplomatic entities (i.e. Embassies, Consulates) are exempted from any legality of and in Thailand. 
So, if your NGO has a diplomatic status, then the Labour Protection Act, paragraph 118 does NOT apply. Should however your employment agreement refer to arbitration in Thailand with an eventual reference to applicable Thai law, then 118 applies. If the NGO has no diplomatic status, then 118 applies anyway. 
Good luck; if you need some legal advice, I can give you a contact who fished out everything possible back in the day. Apart from severance pay as per 118 you can, if you are NOT at fault whatsoever, go for "unfair dismissal" which will - if luck prevails - pour in another month's salary per year of employment. PM me for more if you need ???? 

Thanks for explaining. I am 100% sure they don't have any diplomatic status whatsoever.

 

 

[stament]

Just now, stament said:

Thanks for explaining. I am 100% sure they don't have any diplomatic status whatsoever.

 

 

Unfair dismissal gives you one extra month per year of employment? Interesting.... Is that documented anywhere as from what I read it said it's up to the court to decide, or is that the average award given. I did read on an old thread someone got given an extra month. I've only been there 20 months.

 

Thanks again.

[Sydebolle]

3 hours ago, stament said:

Thanks for explaining. I am 100% sure they don't have any diplomatic status whatsoever.

 

 

If your employer has cars (and most NGOs have cars), they would have a white plate with (all) black numbers - no letters whatsoever if recognized as the diplomatic representation of a country/souvereign state.

If the plates are blue with white (all) numerals, then it is an NGO or organization with diplomatic immunity (United Nations, Red Cross or the Taiwanese Trade Commission). 

If they drive around with normal Thai plates, then there is no ex officio protection.