I Took My Old Employer To Court... And Lost

[adjan jb]

Read this first:

LABOUR PROTECTION ACT OF 1998

Section 118. A boss shall pay compensation to an employee whose employment has been terminated as follows:

(3)An employee who has worked consecutively for a full three years but not a full six years shall be paid an amount at least equivalent to one hundred and eighty days’ pay at his or her most recent wage rate, or not less than the wages earned for the last one hundred and eighty days of work in respect of an employee who is paid a wage on the basis of piece work.

Fixed term employment under paragraph three may be effected in respect of employment for work in specific projects which are not the normal work of the boss’s business or trade, and which must have a definite beginning and end of employment, or for seasonal work for which employment is effected during the period of such seasons, to the extent that the work must be completed within a period of not more than two years, and that the boss and the employee had made a written agreement as such upon commencement of employment.

Section 119. A boss need not pay compensation to an employee whose employment is terminated in any of the following cases:

(1)Dishonesty in carrying out duties or deliberate commission of a crime against the boss.

(2)Intentionally causing the boss to suffer damage.

(3)Negligence, causing the boss to suffer serious damage.

(4)Violation of the work rules and regulations or the boss’ lawful and legitimate regulations or orders, where the boss had already issued a written warning, except that in serious cases the boss need not issue such a warning. A letter of warning shall be enforceable for not more than one year calculated from the date on which the employee committed the offence.

(5)Abandonment of post for three consecutive working days, regardless of whether there was a holiday in between or not, for no appropriate reason.

(6) Imprisonment under a final judgement ordering imprisonment, unless the sentence was for an offence which was committed out of negligence or a petty offence.

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I used to work for a gvt university. After 5 years, I was fired (without any reason). I took my employer to court and ... I lost.

According to the judge, my former employer was entitled to fire me without any severance pay because since 2002 I was working under renewable 1 year contracts.

I know of a Thai teacher who won a similar case (vs the same employer) a few years ago.

So what's the morale of this story ?

"Couldn't help but make me feel ashamed to live in a land Where justice is a game." B. Dylan

Edited December 18, 2007 by adjan jb

[MrSquigle]

dont work 1 year contracts ???

[naka]

dont work 1 year contracts ???

And if you do then make sure you have an "End of contract bonus" clause in your contract.

This is the standard Expat's equivalent to pension/super.

Naka.

Edited December 18, 2007 by naka

[Maestro]

Different type of employment contract and/or different arguments made by plaintiff’s lawyer and/or different judge and/or different interpretation of Section 118(3) of the Labour Protection Act.

Even if in the earlier case the employee had consecutive fixed-term one-year contracts, the employee’s lawyer may have argued and the judge may have ruled that they were not valid as fixed-term contracts because the employer’s business was English-language teaching and the employee’s work thus was “the normal work of the boss’s business”

In your case, the judge probably recognised your repetitive contracts valid as individual fixed-term contracts or your employment as being “for seasonal work for which employment is effected during the period of such seasons”, and therefore at the time of your dismissal your had worked under that contract for less than one year.

You would have to read the full court ruling of cases to figure out the reasons for the different rulings. This would make an interesting case study for a law student.

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Maestro

[adjan jb]

Even if in the earlier case the employee had consecutive fixed-term one-year contracts, the employee’s lawyer may have argued and the judge may have ruled that they were not valid as fixed-term contracts because the employer’s business was English-language teaching and the employee’s work thus was “the normal work of the boss’s business”

In your case, the judge probably recognised your repetitive contracts valid as individual fixed-term contracts or your employment as being “for seasonal work for which employment is effected during the period of such seasons”, and therefore at the time of your dismissal your had worked under that contract for less than one year.

You would have to read the full court ruling of cases to figure out the reasons for the different rulings. This would make an interesting case study for a law student.

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Maestro

I was not working "in specific projects which are not the normal work of the boss’s business or trade", I was not employed for some "seasonal work for which employment is effected during the period of such seasons". Sh#t, I was a very normal university lecturer, I was not harvesting papayas. Throughout my five years at this place, I've taught all the courses, not only Conversation 101. My last evaluation: 4.76 out of 5 ("Superior perfomance-Surpasses Expectation" as they said )

Anyway in such a case (I mean seasonal work), "the work must be completed within a period of not more than two years". I had worked there for 5 years. So it seems obvious that nothing was completed within a period of not more than two years.

The Labor Protection Act also states that "the boss and the employee had made a written agreement as such upon commencement of employment". As far as I am concerned I haven't signed any agreement saying that I would leave after 2 years so my beloved boss doesn't have to pay some form of compensation. I swear I didn't sign such a piece of paper.

Still wondering why I've lost where others (both Thais and Farangs) have won, why I've lost despite the very friendly Labour Protection Act of 98. I took my employer to court because I knew that since I had done a good job (see evaluation), my dismissal was unfair (the story is too long to tell - it's not the place either - but actually I was dismissed because I was the last witness of my boss' pathetic behaviour. The other witnesses had resigned earlier).

So what is the morale of my story ?

I think I have an idea. It's a blank check given to this university. They can go on considering Farang teachers as disposable handkerchieves. I was neither the first nor the last handkerchief they disposed of. But I was the first one to stand up.

Anyway life goes on

[Maestro]

...but did you sign one-year contracts, ie contracts with a fixed period of one year? If so, how did your lawyer argue your case? How did the lawyer of the other employee, who won his case, argue? These are the questions, it would seem to me.

Incidentally, not only in Thailand but anywhere else in the world, two identical cases can result in opposite court rulings depending on how each case is presented and argued, and how the judge interprets the law. This is a fact of law and of life.

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Maestro

[torrenova]

A rolling one year contract where the terms are renegotiated each 12 months could be construed as permanent employment. If you were on a permanent contract and were then asked to sign a one year contract then you should have received some benefit from the loss of rights and status. If you did not, you were either not advised or received bad advice. If you were on one year contracts and at the end of each contract they offered you a new contract, then you have a oproblem to show continuous service and thus, once your contract is completed, both parties are free to go their seperate ways or to sit down and negotiate for a further term.

I am sorry and I think you were perhaps harshly treated but the contractual obligations were over. As stated, an end of contract bonus should have been written into your contract which could be waived upon signing a new contract which itself would have the same terminal bonus.

[mahjongguy]

So what is the morale of my story ?

I hope you weren't teaching English.

[PeaceBlondie]

So what is the morale of my story ?

I hope you weren't teaching English.

The moral of the story is that on ThaiVisa, even on the Teaching Forum, criticizing written English on posts written by English teachers, the person who criticizes is being overly pedantic, and FLAMING.

By the way, the OP is probably not a native speaker of English, nor an English teacher (French, I believe). Please, let's stay on subject.

[skippybangkok]

I hope you weren't teaching English.

Thai law is strange in the case. I was always of the believe that yearly contracts renewed every year for more than 2 ended up being considered permanent employment under thai law. ( but then again, i know little about the law).

[torrenova]

Thai law is strange in the case. I was always of the believe that yearly contracts renewed every year for more than 2 ended up being considered permanent employment under thai law. ( but then again, i know little about the law).

I read something about this which actually makes sense to catch employers who are actually employing people full time and permanently but trying to deliberately avoid the associated responsibilities by using one year contracts.

I think the test was whether the contract was for a specific purpose, such as the building of something where it would be right and proper to have a fixed term contract. For a continuous job, it was argued that annual contracts did form permanent employment but as has been stated, it is down to the presentation of evidence and the judicial interpretation of the law on the day. Oh, and how big pockets you have.

[Maestro]

...For a continuous job, it was argued that annual contracts did form permanent employment but as has been stated, it is down to the presentation of evidence and the judicial interpretation of the law on the day...

Precisely. It is my understanding that a judge will not normally rule on that basis all on his own. Somebody, ie the plaintiff’s lawyer, has to forward that argument, and convincingly so.

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Maestro

[TerryLH]

From the Labor Act

Section 20. When an employee has not worked continuously because his or her boss had the intention of not permitting the employee to have rights under this Act, regardless of the nature of the employee’s duties and the intervals between the periods of service, all periods of service shall be included for the purpose of calculation of the rights entitlements of that employee.

This section was put in so employers can't use the short term contracts to get out of paying severance pay.

[Lost gold]

From the Labor Act

Section 20. When an employee has not worked continuously because his or her boss had the intention of not permitting the employee to have rights under this Act, regardless of the nature of the employee’s duties and the intervals between the periods of service, all periods of service shall be included for the purpose of calculation of the rights entitlements of that employee.

This section was put in so employers can't use the short term contracts to get out of paying severance pay.

True Terry, so true,

"Fixed period employment contract is not for work of permanent nature. Many companies engage employees in a fixed term contract hoping not to pay severance payment at the end. They were surprised when told by the Labor Inspector, and the Labor Court to pay employees severance payment at the expiry of the contract. Ref section 118, last para.

Ref.Dika Court Decision No.5883/2545

Section 118 of the Labor Protection Act B.E.2541 need to be studied carefully to find out that a fixed term contract is possible only for seasonal work, or work of a temporary nature, not a core business, and the contract period shall not be more than 2 years. There is no provision for extension beyond the set period, no early cancellation."