Questions On Labour Laws, Severance Pay, Getting Back Old Work Permit And More…

[Bredbury Blue]

I was wondering if a few of you knowledgeable folks out there would like to work through this scenario with me and offer your advice.

Background:

a) I am British, been here sixteen years.

Work in construction, engineering and oil & gas. Type of work is quantity surveying, contracts management, dispute resolution, etc.

c) In 2000, my Thai girlfriend (wife now) and I started our own Thai limited company (to undertake quantity surveying).

d) I am managing director, my wife is the other director, and we are the major shareholders (family are the other five), my wife has fractionally more shares than I do.

e) I have held consecutive one-year non-immigrant class B visa and a work permit since opening the company – work permit had a stipulated condition of having to employ 4 Thai staff for my one work permit.

f) We married later in 2000, have a couple of sons, but the lawyers we used annually did not suggest at any time swapping the non-immigrant class B visa to a non-immigrant class O-marriage visa.

g) Taxes paid, audits completed, etc, every year with no problems.

h) Mid 2006, not having a particularly successful year (received low income, company recorded a made a loss, but all taxes and social security for Thai staff and myself were paid), and having received a very well paying job offer here from an American company, I took their salaried job and “mothballed” the company. We paid Salaries, tax and social security up to the point mid-year when I joined the American company – we had a 2006 audit carried out. On joining the American company (BOI) my companies' work permit was cancelled and I received their work permit – cancellation of old and issue of new being done on the same day in the BOI office.

i) The American company has now decided to close their Thailand office and I will be retrenched later this year.

j) I am currently waiting on receiving their retrenchment package, and I am considering what to do next which is probably going back to utilising my own company again (take it out of “mothballs”).

Questions:

1. While I am yet to receive the retrenchment package, it has been hinted to me that they will be making me an offer based on American law and not Thai law. Having been employed just over a year, I believe I would receive only a week’s money under American law but 3 month’s money under Thai law. Generally, and without going in to any specifics of my employment contract, if my employment contract is silent on the applicable law, would the fact that I was hired in Thailand (stated), to work in Thailand (stated), with a (BOI) work permit, and paying Thai taxes imply that I am entitled to severance money based on Thai law, i.e. 3 months?

2. If I get in to a dispute on the above, can I apply to have my case looked at by the labour department (or elsewhere)? What are my rights and how would I fight it?

3. As stated above my company had a poor year in 2006 and made a loss. Am I likely to be able to get back my work permit through my company? What criteria will apply? Having held work permit and class B visa continuously and then took a break, I expect to be made to jump through a few hoops to get it back.

4. My old company work permit as stated above had a stipulated condition of having to employ four Thai staff for my one work permit based upon my year 2000 start-up circumstances. Is it likely to still be 4:1 or 1:1 or even 1:0 when I reapply – employees would likely be my wife and I, but if needed we could reinvent the other 3 Thai employees.

5. Our old office (we used a family condominium) is in Sukhumvit but it was suggested by the VAT dept people to move it to our house in Samut Prakarn – does that have any effect on any of this, or on future work permit / visa renewals if we do move the office?

6. Is it better for me to change to a Class O-marriage visa, now, later, or not at all? (Note I would also like to make my residency application this year so I need to maintain the consecutive visas I have held since 2000.)

Appreciate any help you can offer.

[junkofdavid2]

In Thai law, if you've only worked for a year, you only get one month severance and not 3, plus they have to give you one month advanced notice of termination and pay you for that last month as well.

You do not need to employ any Thai staff. Talk to forum sponsor SUNBELT ASIA.

My company registered a loss, but I still got my work permit renewed easily at Labor Dept. However, you might not get an "extension of stay based on business" of your B visa. But you don't need this if you're willing to renew your B visa in Singapore every 3 months.

I would prefer to get the O marriage visa. You might be able to get a 1 year O marriage visa in Thai embassy Singapore if you bring your bankbook and show a reasonable sum of money in it. (I believe it's only 400,000 baht).

Sorry, that's all i can answer. Other posters can help you.

Sunbelt?

Edited July 3, 2007 by junkofdavid2

[Bredbury Blue]

Thanks for your reply. Regarding your point on severance pay:

Severance Pay

An employer shall pay severance pay to an employee whose employment is terminated, as follow:

An employee who has worked for at least 120 consecutive days, but for less than one year shall be paid basic pay for 30 days at the most recent rate of basic pay received by him

An employee who has worked continuously for at least one year but less than three years shall be paid basic pay for 90 days at the most recent rate of basic pay received by him.

An employee who has worked consecutively for three years but less than six years shall be paid basic pay for 180 days at the most recent rate of his basic pay.

An employee who has worked consecutively for at least six years but less than 10 years shall be paid basic pay for not less than 240 days at the most recent rate of his basic pay.

An employee who has worked for more than 10 years consecutively shall be paid basic pay for not less than 300 days at the most recent rate of his basic pay.

http://www.thailabour.org/law/thai/code.html

[monty]

1) The severance pay should be 3 months indeed! I don't really see how American law would come into play here...

More than 120 days but less than one year 30 days severance pay

More than one year but less than three years 90 days severance pay

More than three years but less than six years 180 days severance pay

More than six years but less than 10 years 240 days severance pay

Ten years and up 300 days severance pay

2) If you are not receiving the severance pay you are entitled to under Thai Labour law, you do indeed file a complaint to the Labour Department. You will be treated the same way a Thai National would be treated. It might help to lodge a complaint with the BOI as well since your employer is sponsored by them. There is a small chance they might pressure your employer in avoiding the hassle with the labour department and just pay you what you are entitled to.

3) Not 100% sure about this one, guess as with so many things it will be up to the Labour Department's officer on how he will treat you... Officially you only need to meet the required taxes on the salary as stated on your workpermit application. I don't think they will take the performance of the company in consideration.

4) Currently you normally do not need any employees to be entitled to a work permit! Depends a little bit where you apply, supposedly Chiang Mai does require 1 Thai employee. What you do need the 4 employees for is to get an extension of stay (1 year) on your non immigrant B visa. However with your company having a nett loss in 2006, this extension might get refused anyway, unless your gross sales were higher then a full years worth of salary you draw from your company.

5) no idea!

6) It would definitely be a good idea to go the marriage visa way. As long as you earn 40,000 Baht salary/month and have been doing so in the last few months, this extension should not pose any problems. Any official income from your wife (meaning taxes paid) counts towards the 40,000 as well. Practically this means you will not need the Thai employees, nor will your company need to meet the minimum sales requirements in the future to allow you to stay here on yearly extensions.

[Bredbury Blue]

Could i tempt Sunbelt to comment?

[junkofdavid2]

Thanks for your reply. Regarding your point on severance pay:

Severance Pay

An employer shall pay severance pay to an employee whose employment is terminated, as follow:

An employee who has worked for at least 120 consecutive days, but for less than one year shall be paid basic pay for 30 days at the most recent rate of basic pay received by him

An employee who has worked continuously for at least one year but less than three years shall be paid basic pay for 90 days at the most recent rate of basic pay received by him.

An employee who has worked consecutively for three years but less than six years shall be paid basic pay for 180 days at the most recent rate of his basic pay.

An employee who has worked consecutively for at least six years but less than 10 years shall be paid basic pay for not less than 240 days at the most recent rate of his basic pay.

An employee who has worked for more than 10 years consecutively shall be paid basic pay for not less than 300 days at the most recent rate of his basic pay.

http://www.thailabour.org/law/thai/code.html

Sorry, my mistake. I missed it when reading your first post that you're over a year already and not just 1 year.

Cheers.

[junkofdavid2]

6) It would definitely be a good idea to go the marriage visa way. As long as you earn 40,000 Baht salary/month and have been doing so in the last few months, this extension should not pose any problems. Any official income from your wife (meaning taxes paid) counts towards the 40,000 as well. Practically this means you will not need the Thai employees, nor will your company need to meet the minimum sales requirements in the future to allow you to stay here on yearly extensions.

And you might not even need this if you can get a 1 year multiple entry O visa at Thai embassy Singapore showing your marriage documents together with a bankbook with a reasonable sum of money. (no need to show the 40k/month income)

The only catch with a 1 year multiple entry O is that you'll have to do a border crossing (or fly in and out of Thailand) every 90 days.

Quicker way to get an answer from Sunbelt right now is to pay a visit to Sunrise Tacos on Sukhumvit and talk to Greg. Their tacos are pretty good I dare to say.

[Bredbury Blue]

Quicker way to get an answer from Sunbelt right now is to pay a visit to Sunrise Tacos on Sukhumvit and talk to Greg. Their tacos are pretty good I dare to say.

Wondering if Greg or any of the Sunbelt people could offer their advice?

[Sunbelt Asia]

1. While I am yet to receive the retrenchment package, it has been hinted to me that they will be making me an offer based on American law and not Thai law. Having been employed just over a year, I believe I would receive only a week’s money under American law but 3 month’s money under Thai law. Generally, and without going in to any specifics of my employment contract, if my employment contract is silent on the applicable law, would the fact that I was hired in Thailand (stated), to work in Thailand (stated), with a (BOI) work permit, and paying Thai taxes imply that I am entitled to severance money based on Thai law, i.e. 3 months?

You would be entitled to three months severance. If they notified you today, the employer either has the option of paying you for the rest of the month and one month notice ( August 31st) plus three months severance or letting you work and pay you until August 31st and give you three months severance.

2. If I get in to a dispute on the above, can I apply to have my case looked at by the labour department (or elsewhere)? What are my rights and how would I fight it?

The Labor Court. Call us if you want to fight it.

Am I likely to be able to get back my work permit through my company?

yes

What criteria will apply? Having held work permit and class B visa continuously and then took a break, I expect to be made to jump through a few hoops to get it back

One million Baht registered company. Non immigrant visa.

4. My old company work permit as stated above had a stipulated condition of having to employ four Thai staff for my one work permit based upon my year 2000 start-up circumstances. Is it likely to still be 4:1 or 1:1 or even 1:0 when I reapply – employees would likely be my wife and I, but if needed we could reinvent the other 3 Thai employees.

The requirement is zero employees in Bangkok. Samut Prakarn is much more complicated, they in many cases will want you to have four Thai employees.

5. Our old office (we used a family condominium) is in Sukhumvit but it was suggested by the VAT dept people to move it to our house in Samut Prakarn – does that have any effect on any of this, or on future work permit / visa renewals if we do move the office?

See above.

6. Is it better for me to change to a Class O-marriage visa, now, later, or not at all? (Note I would also like to make my residency application this year so I need to maintain the consecutive visas I have held since 2000.)

Complicated as in order to change to an extension of stay based on marriage, you need to turn in your work permit and this may hurt your settlement case.

If you turn in your work permit after you have been terminated and are no longer working, you will have 7 days to leave Thailand or you can apply for the 60 day extension at Immigration to visit your Thai wife. You then can apply for the one year extension of stay permit being married to a Thai wife with this 60 day extension.

www.sunbeltasiagroup.com

[Bredbury Blue]

sunbelt, Many thanks for your reply, greatly appreciated. Your answers are most helpful and raise a couple of additional queries:

1. While I am yet to receive the retrenchment package, it has been hinted to me that they will be making me an offer based on American law and not Thai law. Having been employed just over a year, I believe I would receive only a week’s money under American law but 3 month’s money under Thai law. Generally, and without going in to any specifics of my employment contract, if my employment contract is silent on the applicable law, would the fact that I was hired in Thailand (stated), to work in Thailand (stated), with a (BOI) work permit, and paying Thai taxes imply that I am entitled to severance money based on Thai law, i.e. 3 months?

You would be entitled to three months severance. If they notified you today, the employer either has the option of paying you for the rest of the month and one month notice ( August 31st) plus three months severance or letting you work and pay you until August 31st and give you three months severance.

Am i understanding this correctly? Are you are saying that the employer must give notice at the end of a monthly salary cycle (?) - would that be generally be classed as the last day of the month? – and if they miss that ‘window’ for giving notice then they must wait to the next window?

What criteria will apply? Having held work permit and class B visa continuously and then took a break, I expect to be made to jump through a few hoops to get it back

One million Baht registered company. Non immigrant visa.

We meet the registered amount, but could i apply for a Class O-marriage and still get a Work Permit? Or is it better to apply for Class B with a Work Permit?

6. Is it better for me to change to a Class O-marriage visa, now, later, or not at all? (Note I would also like to make my residency application this year so I need to maintain the consecutive visas I have held since 2000.)

Complicated as in order to change to an extension of stay based on marriage, you need to turn in your work permit and this may hurt your settlement case.

If you turn in your work permit after you have been terminated and are no longer working, you will have 7 days to leave Thailand or you can apply for the 60 day extension at Immigration to visit your Thai wife. You then can apply for the one year extension of stay permit being married to a Thai wife with this 60 day extension.

I'm hoping i can reach an amicable departure with them, and may request their assistance, in that, just like when i started with them i cancelled my company work permit and received their work permit on the same day (at the One-Stop), that we do the reverse and my work permit application coincides with the turning in of their work permit. If i can do something like that hopefully with legal help i can swap (or atleast start the process of getting a new work permit) and apply "for the one year extension of stay permit being married to a Thai wife with this 60 day extension".

www.sunbeltasiagroup.com

Edited July 4, 2007 by Bredbury Blue

[Bredbury Blue]

bump - hoping to get Sunbelt's follow up response

[Sunbelt Asia]

Am i understanding this correctly? Are you are saying that the employer must give notice at the end of a monthly salary cycle (?) - would that be generally be classed as the last day of the month? – and if they miss that ‘window’ for giving notice then they must wait to the next window?

They must give a notice before the payment cycle. If they let you go today.... they must pay for the remainder of this month and one notice period. (you are on a month payment cycle not Bi-monthly)

We meet the registered amount, but could i apply for a Class O-marriage and still get a Work Permit? Or is it better to apply for Class B with a Work Permit?

Yes you can get a work permit with a Class O. The Class O is a MUCH better way to go in your case. As you will never qualify for the resident permit in the future with leaving every 90 days. ( You do not qualify with your old company with getting the extension of stay based on business )

www.sunbeltasiagroup.com

[Bredbury Blue]

Question: 1. While I am yet to receive the retrenchment package, it has been hinted to me that they will be making me an offer based on American law and not Thai law. Having been employed just over a year, I believe I would receive only a week’s money under American law but 3 month’s money under Thai law. Generally, and without going in to any specifics of my employment contract, if my employment contract is silent on the applicable law, would the fact that I was hired in Thailand (stated), to work in Thailand (stated), with a (BOI) work permit, and paying Thai taxes imply that I am entitled to severance money based on Thai law, i.e. 3 months?

Sunbelt Reply: You would be entitled to three months severance. If they notified you today, the employer either has the option of paying you for the rest of the month and one month notice ( August 31st) plus three months severance or letting you work and pay you until August 31st and give you three months severance.

To Sunbelt and all who have contributed, many thanks. A further question if i may

It has been made clear to all staff now, who is being relocated and who is being retrenched, due to the office closing and the compnay moving to Singapore - i am the latter and have copy of an email which states that. All the thai staff have received a termination / severance agreement in writing (which i've read) and i should receive something this week.

On that basis - that they are going to retrench me - if i gave my notice in instead of waiting for them to give me my notice (i.e. after i've sourced new work), i presume that i would have to work a month's notice cycle, but (1) am i able to give notice in on any date (or should it be end or beginning of month, as per your earlier advice), and (2) most importantly, would i still be entitled to receive the severence pay or would i forfeit it?

Edited July 8, 2007 by Bredbury Blue

[bendix]

On 1) you are entitled to give notice any time you like. BUT, on 2) you would forfeit severance pay, even if you KNEW that they were going to retrench you at some time in the future (even the very near future as in this case).

[Bredbury Blue]

BUT, on 2) you would forfeit severance pay, even if you KNEW that they were going to retrench you at some time in the future (even the very near future as in this case).

Even after i have something in writing that they are going to retrench me?

[bendix]

Most likely yes (although you need to check with a lawyer). All you have is a letter of intent; not a formal notice of severance.

My reading would be that if you act on that letter of intent by resigning, you are forfeiting your right to severance pay by - basically - acting proactively and taking away you're employer's NEED to retrench you.

I could be wrong, but my STRONG advice would be to sit tight.

[Bredbury Blue]

It has been made clear to all staff now, who is being relocated and who is being retrenched, due to the office closing and the compnay moving to Singapore - i am the latter and have copy of an email which states that. All the thai staff have received a termination / severance agreement in writing (which i've read) and i should receive something this week.

On that basis - that they are going to retrench me - if i gave my notice in instead of waiting for them to give me my notice (i.e. after i've sourced new work), i presume that i would have to work a month's notice cycle, but (1) am i able to give notice in on any date (or should it be end or beginning of month, as per your earlier advice), and (2) most importantly, would i still be entitled to receive the severence pay or would i forfeit it?

Thanks Bendix. Do we have any lawyers reading who can answer my second question (in bold)?

[Bredbury Blue]

If an employment contract for some one working in thailand is silent on the law governing the employment contract, presumably thai law would apply?

If an employment contract for some one working in thailand refers to the law of a country other than thailand governing the employment contract, would that law apply or would thai law apply?

[Bredbury Blue]

If you turn in your work permit after you have been terminated and are no longer working, you will have 7 days to leave Thailand or you can apply for the 60 day extension at Immigration to visit your Thai wife. You then can apply for the one year extension of stay permit being married to a Thai wife with this 60 day extension.

www.sunbeltasiagroup.com

I've read through this and several similar topics and i remain a tad confused.

1. If you have a work permit and a non-B one year extention of stay, you resign or are terminated, i understand that you have 7 days from (or following?) the date of your last date of employment to return your work permit. You also apparently have 7 days to leave the country. But, if the WP is related to the labour office and the visa is related to the immigration office, how would immigration know you had 7 days to leave? Does the labour office need your passport when you hand in your WP and they stamp the passport 7 days to leave or similar, or do they type something in to a linked computer system? How would immigration know?

2. Say you had to leave (assume immigration does know), and if your visa was valid for a while longer (and visa expiry dates are not always linked to the same date as the renewal date of your WP), could you return for another stay (doing a 90 day report as usual) assuming you had a re-entry visa of course, until the visa expired? .

Sunbelt could answer again please?

[Bredbury Blue]

My company is still trying to avoid answering my requests for clarification upon my retrenchment entitlement and severance pay in particular - it will come to a head shortly as i have advised them i'm due severance based upon Thai law - but they are however being reasonable (so far) about my visa situation and arranged for me to meet their external lawyers to ask questions on work permit / visas. Some of you may find this interesting / useful, and if there is anything wrong in their advice please let me know:

1. Being employed with a Work Permit and Non-B visa with One Year of Stay (issued by BOI), being married to a Thai national, it is possible to change during the employment period from a Non-B visa to a Non-O Marriage visa?

Yes.

2. At the end of the employment period, within 7 days of the last day of employment i would have to both (i) return the Work Permit to the labour office that issued it and (ii) leave the country, is that correct?

Yes, and staying beyond the 7 day period would be an overstay situation subject to fines.

3. If during the employment period I had changed the Non-B visa to a Non-O Marriage visa, would I still have to leave the country within 7 days of the last day of employment?

Yes.

4. Following leaving the country within 7 days of the last day of employment, could I return on the Non-B visa or the Non-O Marriage visa (if I had changed visa).

No, the visa expires on departure regardless of any valid re-entry visa.

5. How would immigration in Thailand (Suan Phlu office for example) or at the point of departure (Bangkok airport for example) know (i) that you have 7 days to leave, and (ii) if you had left the country within that time frame (or later) with a visa and valid re-entry visa that that visa could not be used to re-enter the country?

When returning the work permit, the labour department should stamp something in to your passport, which would advise of the 7 day expiry of current visa.

6. During the 7 days after the last day of employment, is it possible to apply to change the Non-B visa to a Non-O Marriage visa?

It is possible to apply for 60 day extension at Immigration to visit your Thai wife.

[Note: lawyer unsure if (i) this could eventuality become a Non-O Marriage visa, and (ii) if the 60 day would count as continuation of my uninterrupted three years of visas which permits me to apply for Permanent Residence]

7. What is required to apply for Non-O Marriage visa?

Spouse must have an income of Baht 40,000 per month. Baht 400,000 money in your bank is no longer accepted.

Edited July 17, 2007 by Bredbury Blue

[lopburi3]

As you keep talking about visas when I believe you are talking about extensions of stay it is hard to say what is what. A visa (B or O) is issued by a Consulate and allows you to enter up to 90 days - no longer than that. But you are not talking about visas as you have an extension of stay.

Number 3 is flat wrong AFAIK. You would not have to leave (but if you could not meet the 40k requirements you might not be able to extend again).

Number 4 is also wrong - a visa is "used" upon entry or if multi entry expires at the date indicated on visa - it does not expire by leaving - your permitted to stay or extension of stay expires.

Number 5 - I have not heard of Labor stamping a passport and doubt they have such authority. But have never been there/done that.

Number 7 - Family must have 40k monthly income over at least the previous three months.

[bendix]

If an employment contract for some one working in thailand is silent on the law governing the employment contract, presumably thai law would apply?

If an employment contract for some one working in thailand refers to the law of a country other than thailand governing the employment contract, would that law apply or would thai law apply?

Sorry, i missed this before.

If you're working in Thailand, Thai law applies, irrespective of what it says on your contract. Any attempt to override Thai law by placing a bogus line such as 'this emploment contract is governed by US law' would be looked at very harshly by Thai Labor Courts who, time and again it seems, side with the employee. They would see this as a deliberate yet futile attempt to ignore Thai law in Thailand. Completely illegal and immoral.

[Bredbury Blue]

As you keep talking about visas when I believe you are talking about extensions of stay it is hard to say what is what. A visa (B or O) is issued by a Consulate and allows you to enter up to 90 days - no longer than that. But you are not talking about visas as you have an extension of stay.

Number 3 is flat wrong AFAIK. You would not have to leave (but if you could not meet the 40k requirements you might not be able to extend again).

Number 4 is also wrong - a visa is "used" upon entry or if multi entry expires at the date indicated on visa - it does not expire by leaving - your permitted to stay or extension of stay expires.

Number 5 - I have not heard of Labor stamping a passport and doubt they have such authority. But have never been there/done that.

Number 7 - Family must have 40k monthly income over at least the previous three months.

Sorry if it wasn't clear but as per my first line i have a "Non-B visa with One Year of Stay" (i.e. a visa, with a one year extension of stay), therefore to clarify fully i have corrected and reposted below. Many thanks for your interpretation which does not concur with the lawyer, when i see them next - next week? - i'll raise it with them (needless to say, i wasn't very impressed with the lawyer's answers, hence my posting). Also regarding your answer to number 3, it needs to be read in conjunction with number 6.

1. Being employed with a Work Permit and Non-B visa with One Year of Extension of Stay (issued by BOI), being married to a Thai national, it is possible to change during the employment period from a Non-B visa with One Year of Extension of Stay to a Non-O Marriage visa with One Year of Extension of Stay?

Yes.

2. At the end of the employment period, within 7 days of the last day of employment i would have to both (a) return the Work Permit to the labour office that issued it and ( leave the country, is that correct?

Yes, and staying beyond the 7 day period would be an overstay situation subject to fines.

3. If during the employment period I had changed the Non-B visa with One Year of Extension of stay to a Non-O Marriage visa with One Year of Extension of Stay, would I still have to leave the country within 7 days of the last day of employment?

Yes.

4. Following leaving the country within 7 days of the last day of employment, could I return on the Non-B visa with One Year of Extension of Stay or the Non-O Marriage visa with One Year of Extension of Stay (if I had changed visa status).

No, the visa with One Year of Extension of Stay expires on departure regardless of any valid re-entry visa.

5. How would immigration in Thailand (Suan Phlu office for example) or at the point of departure (Bangkok airport for example) know (i) that you have 7 days to leave, and (ii) if you had left the country within that time frame (or later) with a visa and valid re-entry visa that that visa could not be used to re-enter the country?

When returning the work permit, the labour department should stamp something in to your passport, which would advise of the 7 day expiry of current visa with One Year of Extension of Stay.

6. During the 7 days after the last day of employment, is it possible to apply to change the Non-B visa with One Year of Extension of Stay to a Non-O Marriage visa with One Year of Extension of Stay?

It is possible to apply for 60 day extension at Immigration to visit your Thai wife.

[Note: lawyer unsure if (i) this could eventuality become a Non-O Marriage visa with One Year of Extension of Stay, and (ii) if the 60 day would count as continuation of my uninterrupted three years of visas with Extension of Stay which permits me to apply for Permanent Residence]

7. What is required to apply for Non-O Marriage visa?

Spouse must have an income of Baht 40,000 per month.

[lopburi3]

3 and 6 are different questions and the answer provided you was wrong for 3 but right (I hope - at least I can't say it is wrong) for 6 (although he did not answer your specific question).

As for extension for support during the 7 days I do not know the answer to that; but one would think if the 60 day TM.7 could be accepted that a one year TM.7 could also be accepted.

[Bredbury Blue]

If you're working in Thailand, Thai law applies, irrespective of what it says on your contract.

Thanks. I've had similar advice from legal buddies but where in thai law does it state that (that's what i need to know)?

[bendix]

It doesnt need to state that. Sorry if this sounds trite, but we're in Thailand. What you're asking is similar to a situation where guy from Utah living in London might try to avoid being prosecuted for bigamy by arguing, where in UK law does it say that 'Utah law doesnt apply here'.

[Bredbury Blue]

It doesnt need to state that. Sorry if this sounds trite, but we're in Thailand. What you're asking is similar to a situation where guy from Utah living in London might try to avoid being prosecuted for bigamy by arguing, where in UK law does it say that 'Utah law doesnt apply here'.

Fair point.

Funny enough i have experience of this before in the asian crisis when my HKG employers wanted to axe two of us here. We went to a lawyer, from memory he said we had a case, but all we did was photocopy the lawyers name card and post it to HKG with a note "Please contact our lawyers to discuss retrenchment" - they crumbled.

[bendix]

And that - in a nutshell - is the best policy, mate.

Most employers will work on the assumption that you WON'T get legal advice. They will assume you will go meekly and without a fight. EVERY single time I've seen an employee seek legal advice and follow through, the employers crumble. They work on the basis that not only do you not know your rights or the law, but that you don't even know such protection exists or even know the right questions to frame in your mind.

You know me. I'm usually on the side of big business, but employers riding roughshod over employees who they are trying to displace because of the mismanagement of the business is something i feel strongly about.

Go kill 'em.

Get your severance pay, and the next day send them a nice email thanking them for the money and tell them you've got a great new job to look forward to, but the severance will pay for a nice holiday in the interim. :-)

[Estrada]

I was wondering if a few of you knowledgeable folks out there would like to work through this scenario with me and offer your advice.

Background:

a) I am British, been here sixteen years.

Work in construction, engineering and oil & gas. Type of work is quantity surveying, contracts management, dispute resolution, etc.

c) In 2000, my Thai girlfriend (wife now) and I started our own Thai limited company (to undertake quantity surveying).

d) I am managing director, my wife is the other director, and we are the major shareholders (family are the other five), my wife has fractionally more shares than I do.

e) I have held consecutive one-year non-immigrant class B visa and a work permit since opening the company – work permit had a stipulated condition of having to employ 4 Thai staff for my one work permit.

f) We married later in 2000, have a couple of sons, but the lawyers we used annually did not suggest at any time swapping the non-immigrant class B visa to a non-immigrant class O-marriage visa.

g) Taxes paid, audits completed, etc, every year with no problems.

h) Mid 2006, not having a particularly successful year (received low income, company recorded a made a loss, but all taxes and social security for Thai staff and myself were paid), and having received a very well paying job offer here from an American company, I took their salaried job and “mothballed” the company. We paid Salaries, tax and social security up to the point mid-year when I joined the American company – we had a 2006 audit carried out. On joining the American company (BOI) my companies' work permit was cancelled and I received their work permit – cancellation of old and issue of new being done on the same day in the BOI office.

i) The American company has now decided to close their Thailand office and I will be retrenched later this year.

j) I am currently waiting on receiving their retrenchment package, and I am considering what to do next which is probably going back to utilising my own company again (take it out of “mothballs”).

Questions:

1. While I am yet to receive the retrenchment package, it has been hinted to me that they will be making me an offer based on American law and not Thai law. Having been employed just over a year, I believe I would receive only a week’s money under American law but 3 month’s money under Thai law. Generally, and without going in to any specifics of my employment contract, if my employment contract is silent on the applicable law, would the fact that I was hired in Thailand (stated), to work in Thailand (stated), with a (BOI) work permit, and paying Thai taxes imply that I am entitled to severance money based on Thai law, i.e. 3 months?

2. If I get in to a dispute on the above, can I apply to have my case looked at by the labour department (or elsewhere)? What are my rights and how would I fight it?

3. As stated above my company had a poor year in 2006 and made a loss. Am I likely to be able to get back my work permit through my company? What criteria will apply? Having held work permit and class B visa continuously and then took a break, I expect to be made to jump through a few hoops to get it back.

4. My old company work permit as stated above had a stipulated condition of having to employ four Thai staff for my one work permit based upon my year 2000 start-up circumstances. Is it likely to still be 4:1 or 1:1 or even 1:0 when I reapply – employees would likely be my wife and I, but if needed we could reinvent the other 3 Thai employees.

5. Our old office (we used a family condominium) is in Sukhumvit but it was suggested by the VAT dept people to move it to our house in Samut Prakarn – does that have any effect on any of this, or on future work permit / visa renewals if we do move the office?

6. Is it better for me to change to a Class O-marriage visa, now, later, or not at all? (Note I would also like to make my residency application this year so I need to maintain the consecutive visas I have held since 2000.)

Appreciate any help you can offer.

I had the same problem with another American Company back in 1997, they tried to lay 24 of us off with 1 month's notice. I did some research and found that Thai Law takes precedent over anything written in an overseas contract. The result, I got 3 months severence and some got 6 months.

A Rotarian in my Club is a Labour Court Judge. they always like to find for the Employee not the Employer, particularly as there is no State assistance when you lose your job here. The Government expects the Employer to provide a few months pay on order to allow the Employee to find another job.

I also point out that the labour court is not interested in the fact that a claimant may not have had a work permit, not that any Company in their right mind would fight a claim for severence pay when they did not obtain a work permit for the Employee in the first place, but I have seen it happen.

[Bredbury Blue]

To my email to the company which states my understanding that

(1) i am entitled to termination and severance based upon Thai law,

(2) that as i receive (i) a basic salary, and (ii) accommodation and (iii) transport allowances as a monthly salary, that i should receive all 3 in payments for termination and severance,

I have now received a response from the company, which as i expected does not agree.

They state that

(1) Termination: From the day of release, you will be paid out the 30 day notice on base salary only.

(2) Actual severance is 1 week per year of service with a minimum of 2 in accordance with the corporate policy for xxxcompanyxxx (attached), which covers xxxcompanyxxx. The agreement you are working under is under xxxcompanyxxx, which is a Cayman Island Company. Any severance is based on base pay only.

(3) You are hired out of xxxcompanyxxx. Local Thai laws do not apply.

So we have a disagreement.

Anybody have any advice?

I would prefer to keep it nice in my response (i.e. keep lawyers in the background if it comes to that) as they seem to want to help me with my visa / work permit transition. Maybe i should suggest that we amicably and jointly go to the Thai labour court to review who is right. It would be good if some one could quote some text book, legal case, precendent, etc, which i can put in front of them. I am convinced that they have already checked this out themselves and are trying it on. People on here seem convinced that i am right but how can i be sure so i don't make a <deleted> of myself?

Edited July 19, 2007 by Bredbury Blue