Compensation Upon Firing For Farang?

[donna]

thanks for the advice raybkk, but i have already been to a lawyer. i didnt go to the labour office simply because a girlfriend took me to her lawyer. i hope to have some news soon and will keep you posted.

[v8tfcorty]

ok let me get my head around this.

im here from australia working on a yearly contract basis after the year is up if they choose to keep me here the contract is renewed for another 12 month term etc etc etc ..

now in my contract it says upon termination of contract iam entitled to either 1 months notice or 1 months pay in lieu at the employers discretion...

from what im reading here if after the contract is due for renewal (and not renewed)or even terminated iam supposed to recieve a severance payout of 3 months wages....

can anyone provide a link to the labor law site that states this as this would be a nice little earner to head back home with

[bendix]

I's not quite as simple as that, although let me deal with the terms first.

If you're liable for severance you would only get three months after you have worked for MORE THAN one year, and less than three. A year, i think, would only qualify you for 1 month. A year and a day, three months.

The one month in lieu or one month notice is over and above that.

HOWEVER, it depends on the nature of your role. If you are on a fixed term contract because the nature of what you're doing is a special project out of the normal run of your company's ordinary activities or if it's seasonal work, for example, then you wouldn't get severance.

But if you are a regular employee and they just have you on a fixed term contract for no good reason, then - yes - you are right.

In fact, in your situation, you should be aware that there are instances where labor courts in Thailand have not only ruled in your favour, but made the employer pay your fare back home (if that's not already covered in your contract).

Can't find a link, but I have confirmed this with several specialist lawyers at my place AND read the relevant legislation which is relatively easy to find. I'm sure if you sent an email to Sunbelt, they will endorse my view.

[bendix]

###### I'm good. I've found the entire text of the Labour Protection Act 1998 online. The relevant sections are 118-122.

http://www.unicz.it/lavoro/THAI_LPA(98).htm

[v8tfcorty]

cool cool ty bendix,

my job AFAIK isnt under any kind of threat,

the company im working for was set-up from my australian employer it is not seasonal,or any type of special project.

my contract is renewable every 12 months but was asking just incase they dont re-new one year lol..

and yes ticket home is included

[Ijustwannateach]

Out of curiousity, what would happen to someone who was forced to retire, for example at 60 when work permits are no longer issued? Would they receive severance based on years worked?

"Steven"

[TerryLH]

"... what would happen to someone who was forced to retire, for example at 60 when work permits are no longer issued?"

The part about what would happen to someone being forced to retire is a good question.

The second part, about WP's not being issued after 60, is not true.

Terry

[geronimo]

I have a question too.

What if a farang was shown the door from his employer but the farang did not have a contract with them ?

Would he be still liable for severance compensation ?

No contract - no job, right? And to confirm that you were actually working w/o contract means you've been working illegally, hence claiming your compensation is aknowledgement of the crime against present labor law.

So to speak, say thank you and hit the door. next time get a written contract.

Hey bendix, what is this riddle :

>>work in management for an international law firm, but I'm not a lawyer.

hm... HR ? PR ? HZ ?

makes me curious

Having no formal contract doesn't necessarily mean you're working illegally, so long as you have a work permit. I'm sure noone working without a work permit would be stupid enough to assume they can claim severance. I could be wrong.

Why curious about a management role in a lawfirm? While I accept I'm fascinating, I wouldn't recommend anyone losing sleep over how I make a crust.

I won a dismissal case without a work permit. I just told the judge I repeatedly asked for one. It wasn't held against me and the judge blasted my employer for failing to do that.

Did this not require any type of documentation on your part regarding your prepeated requests? Very interesting...

No, just my word under oath

[quiksilva]

There is some seriously valuable information in this thread, (thank you Bendix), I really think this should be pinned.

[wcr]

This is an excellent topic and I have learnt a lot reading stuff here as an employer.

One thing I can't seem to find is holiday entitlement. Can someone please tell me what the law states about the amount of paid holiday employees are entitled to.

Thanks,

Edited July 14, 2007 by wcr

[v8tfcorty]

AFAIK all the thai people at my work get 2 weeks per year ....

we work 6 days a week so they get 12 days per year.

and according to my work contract there is 30 days sick leave per year ( not sure if this applies to the locals or not)

[donna]

the minimum annual leave is 6 days per year. public holidays add on another 14 days or so (depending on what is decided at the time i guess - look at songkran). minimum sick days with full pay is 30.

[wcr]

I'm ok then. My staff get the stat. days + 12 days a/l (they work 6 days a week also). However I don't like the sick pay, very generous. I am assuming it must all be certified by a doctor, or no sick pay due?

Thanks

[v8tfcorty]

3 or more consecutive sick days requiresd a medical certificate

[geronimo]

I have a question too.

What if a farang was shown the door from his employer but the farang did not have a contract with them ?

Would he be still liable for severance compensation ?

No contract - no job, right? And to confirm that you were actually working w/o contract means you've been working illegally, hence claiming your compensation is aknowledgement of the crime against present labor law.

So to speak, say thank you and hit the door. next time get a written contract.

Hey bendix, what is this riddle :

>>work in management for an international law firm, but I'm not a lawyer.

hm... HR ? PR ? HZ ?

makes me curious

Having no formal contract doesn't necessarily mean you're working illegally, so long as you have a work permit. I'm sure noone working without a work permit would be stupid enough to assume they can claim severance. I could be wrong.

Why curious about a management role in a lawfirm? While I accept I'm fascinating, I wouldn't recommend anyone losing sleep over how I make a crust.

I won a dismissal case without a work permit. I just told the judge I repeatedly asked for one. It wasn't held against me and the judge blasted my employer for failing to do that.

Did this not require any type of documentation on your part regarding your prepeated requests? Very interesting...

None at all, in fact the labour court judge was on my side from the word go. It took one year but I was finally awarded 8 months salary.

[onethailand]

Thai labour law is designed to protect the workers and in most cases the law sides with the worker.

That being said, if you are on a fixed-term contract there isn't likely to be much that can be done unless you feel you were unfairly dismissed. Thai labour law will *not* override any contract between employer and employee except in situations where the contract conflicts with the law. Fixed-term is certainly not prohibited by labour law and thus if the employer honors the contract and the contract does not breach the labour law, that's it.

They are, however, still required to give you notice - so if they did not do so then you are entitled to a month's pay in lieu of severance. If they do not meet this obligation, then you have the right to take them to labour court which will rule in your favor - and you could then be eligible to receive additional payments based on costs, damages, etc.

Good luck to you. No one should be unfairly treated by an employer and in this case the very least you should expect is proper notice or severance in lieu.

Disclaimer: I am not a lawyer, the opinion presented above is mine alone and has no bearing in a court of law.

[donna]

the fact that the work i was doing was related to the every day running of the business means that the contract was not fixed term. so i am entitled to more than the 1 month severance.

[onethailand]

the fact that the work i was doing was related to the every day running of the business means that the contract was not fixed term. so i am entitled to more than the 1 month severance.

Contract positions are available at practically any level in a company. Your relevance to the company is not likely to be accepted as an argument. The only other factor which might have any bearing is the duration of your service to the company.

[vegas]

Another point worth mentioning. Some employers will pay a minimum salary to expat employees which they declare to the tax dept. to avoid paying high amounts of tax and pay the remainder in cash to the employee.

If you are terminated you are only entitled to severance pay based on the min amount, despite the fact that your contracted salary may be twice the declared salary. Then if you try to take the employee to court, the revenue dept. will hit you for unpaid taxes if you win the case.

[Neeranam]

Termination and Severance

An employee normally must be given notice of termination at least one pay period or one month in advance of termination, whichever is shorter. This notice period does not apply to employees being terminated for cause.

Does this have to be in writing?

If I were working for a govt. university for 3 years and they told me they didn't want to renew my contract 1 month before, would I still be entitled to 3 months?

Edited July 24, 2007 by Neeranam

[donna]

i would have thought so. i was given no notice at all. just told i was not needed any more becuse the new owners did not want to pay a foreigner to do the job and not to bother coming in again.

[bendix]

Thai labour law is designed to protect the workers and in most cases the law sides with the worker.

That being said, if you are on a fixed-term contract there isn't likely to be much that can be done unless you feel you were unfairly dismissed. Thai labour law will *not* override any contract between employer and employee except in situations where the contract conflicts with the law. Fixed-term is certainly not prohibited by labour law and thus if the employer honors the contract and the contract does not breach the labour law, that's it.

They are, however, still required to give you notice - so if they did not do so then you are entitled to a month's pay in lieu of severance. If they do not meet this obligation, then you have the right to take them to labour court which will rule in your favor - and you could then be eligible to receive additional payments based on costs, damages, etc.

Good luck to you. No one should be unfairly treated by an employer and in this case the very least you should expect is proper notice or severance in lieu.

Disclaimer: I am not a lawyer, the opinion presented above is mine alone and has no bearing in a court of law.

With respect, if you don't know what you're talking about, best to just not talk.

You could not be more wrong if you tried. There have been innumerable examples of cases where it is shown that being on a fixed contract is no defence against not getting severance.

Have you EVEN read this thread? Have you read the Labour Protection Act? Have you read examples of actual cases? Have you talked to a lawyer.

Fact: If you are on a fixed contract and it is NOT renewed you are eligible for severance as if you were a normal employer, EXCEPT in the very rare exceptions already mentioned.

[onethailand]

With respect, if you don't know what you're talking about, best to just not talk.

You could not be more wrong if you tried. There have been innumerable examples of cases where it is shown that being on a fixed contract is no defence against not getting severance.

Have you EVEN read this thread? Have you read the Labour Protection Act? Have you read examples of actual cases? Have you talked to a lawyer.

Fact: If you are on a fixed contract and it is NOT renewed you are eligible for severance as if you were a normal employer, EXCEPT in the very rare exceptions already mentioned.

First, see the disclaimer.

Second, I have read the LPA many times over. Your severance is a notice period of one month or one month's pay in lieu if you are on a one year fixed contract *unless* your position is considered to be permanent - it clearly states that employees on fixed-duration are not entitled unless on non-regular business of the company, seasonal or temporary employment.

By definition a fixed-term contract is temporary - I do not understand how you can define a fixed-term contract as permanent unless this is clarified in the contract (ie. it says contract will be reviewed on an annual basis).

As I have not seen Donna's contract, I can't obviously tell. If there is any indication that it is a contract with an annual review period, as opposed to a contract with a fixed-term, then you are right, and Donna should be entitled to 3 months severance.

There are no cases that have been discussed in this thread that say otherwise. Yes, Thai Labour Law is heavily in favor of the employee vs. the employer - but fixed-term contract workers are not protected nearly as well as you imagine.

If you work in an international law firm, then it would be pretty simple for you to ask one of your colleagues, no? There is no point in starting a bickering session over who knows what when you have the ability to get a qualified answer.

[onethailand]

Well, I am willing to correct myself and point out some good news.

First of all, the complete LPA is available at:

http://www.mol.go.th/download/laborlaw/lab...tion1998_en.pdf

Secondly, in section 118, there is an exception which says that employees on fixed duration are not eligible for severance - but it is clearly marked "the provisions of Paragraph One". I mistakenly thought it read "the provisions of this section".

Paragraph 1 relates only to employees working for 120 days or less.

Paragraph 2 relates to employees working for a year but less than three years.

The Act does not make any exceptions for employees falling in Paragraph 2 - and thus the employee should be otherwise entitled to ninety days severance pay.

I take that to mean that "temporary" is "up to 120 days".

So, Donna, according to my "uninformed" reading of the LPA, you are entitled to 90 day's severance pay plus one pay period's notice (30 days, I imagine you get paid monthly).

Someone else suggested you go direct to the Labour Court - I think that is a good recommendation. You might also consider going direct to the hotel with a copy of Section 118, or the whole labor law, and present them with a request for 3 months + 1 month in lieu of notice, plus costs already incurred. There does not appear to be a provision for costs in the LPA but I imagine that it would be a fair claim. Maybe present them a copy of the complaint form you are about to file as well so they know you are serious.

Edited July 25, 2007 by onethailand

[bendix]

Very noble of you to correct yourself onethailand. Nice one.

The reason I am so sure of myself on this is because i did just what you suggested many months ago - referred it to employment law specialists not only at my own firm, but also other organisations too. They confirmed that not only is the law to be interpreted in the way you read it, but that there have also been several tried and tested cases, including one involving a farang on a fixed term contract as outlined above.

Someone else suggested fixing this as a permanent thread. I agree. I think this is critically important to many farangs who are doubtless completely unaware of their rights. In fact, I'd go further; they wouldn't even think to ask because - frankly - it seems too good to be true.

In this case, though, it is true.

[onethailand]

I think a new thread covering this issue should be stuck up instead so that people don't have to read through a lot of the irrelevant stuff.

A fixed-term contract of 120 days or less wouldn't be covered - but as Donna's been there a year it's a completely different scenario. It really amounts to what the Labour Ministry defines as "temporary" or "temporary with time limitation".

Anyhow, admitting I read the LPA wrong is not a problem - what is more important is that the OP gets the information she needs to proceed (or otherwise).

[donna]

the main thing that pertains to my case, onethailand, is the difference between fixed term and non fixed term.

the law clearly states that if the work being done by the employee is related to the every day running of the business, then the contract is not fixed term.

if the work being done by the employee is a special project (lets say, for example, the pre-opening work for a new hotel) then this is clearly a fixed term project under which no termination compensation is payable.

look back over the thread and you will see i have cut and pasted some info which is very clear when you read it.

the hotel manager does not feel that he owes me anything at all, so this will be pursued, but at the moment i am doing some work in bkk which does not allow me the time to chase it as fast as i would like to. but believe me, they will be hearing more from me.

my lawyer here in bkk called the hotel and the idiot young thai girl who spoke to him had the audacity to laugh at him over the phone! so hes not pleased with their behaviour either.

[britmaveric]

Donna - seems your former employer is a wank*r and can't say much for the staff either. I'm sure they won't be laffing when they have to cough up the dosh.

[donna]

oh im SURE they will be laughing on the other side of their faces once they see the demand come from the labour court. they have ignored the letter from the lawyer, so i am off to buy some boxing gloves to go in to battle.

hel_l hath no fury and all that.....

[onethailand]

the law clearly states that if the work being done by the employee is related to the every day running of the business, then the contract is not fixed term.

This cannot be correct. The simplest example is when a female employee gets pregnant, and takes time off as permitted by law. A second person, male or female, may be drafted in to perform this person's duties - and this is directly related to the everyday running of the business. It matters not whether this person is from a temp agency or directly hired, he/she is still considered to be on a fixed-term contract.

All the law says is that, for the purposes of determining severance pay, a fixed-term contract must be for special purposes in order to be excluded.

Anyhow, you should also be aware of Section 17 - again you haven't specified exactly how your contract is worded, but Section 17 says that "a Contract of Employment shall expire upon the completion of the period specified in the Contract of Employment without the need to give advance notice. Whereas no definite period is specified in the contract,..." they have to give you one wage period's advance notice in writing.

Edited July 25, 2007 by onethailand