Anyone Been Sued By A Thai?

[BabyPanda]

Hi there,

I am looking for a bit of advice and moral support...

Our driver is suing us for unfair dismissal... He worked for us for 18 months and he has a written contract that was badly translated from English to Thai which says he'd be employed for 3 years pending good performance.

We only paid him one and half month pay.

He's asking for one month notice pay + 3 months and the remaining of the 18 months.

My husband consulted a lawer and was told that Thai usually always wins over Farang and that the driver has every ground to win since we did not give him written warnings - only 3 verbal ones.

Thanks for any advice...

[joskydive]

I'd go and find another Lawyer and see what that one has to say on the subject. Personally, I've never found a court to be predjudice against the foreigner but maybe I'm just lucky.

The only reference that I have found in the Civil and Commercial Code is as follows.

Title VI Hire of Services

Section 575

A hire of services is a contract whereby a person, called the employee, agrees to render services to another person, called the employer, who agrees to pay a remuneration for the duration of the services.

Section 583

If the employee wilfully disobeys or habitually neglects the lawful commands of his employer, absents himself from service, is guilty of gross misconduct, or otherwise acts in a manner incompatible with the due and faithful discharge of his duty, he may be dismissed by the employer without notice or compensation.

It doesn't state anywhere here that you have to give written warnings, however, I would say that the written word is better proof of misconduct or failure of his duties.

Edited January 26, 2009 by joskydive

[joskydive]

I have just looked up the Thai Labor Law.

Legal Obligations When Terminating Staff

Employers Should Be Aware of Legal Obligations When Terminating Staff

Proper Calculation of Severance May Be Key to Avoiding Legal Complications

(published in Bangkok Post on December 13, 2001)

Year-end is a time when many companies assess employee performance and make difficult decisions concerning staff to be laid-off or otherwise terminated.

Thai law prescribes a number of legal obligations to employers when terminating staff.

These obligations may involve notice of termination, annual leave, severance, provident fund, reimbursable expenses, damages for unfair dismissal , as well as other issues depending upon the particular employment arrangement between the two parties.

Among the many important legal issues to be considered by the employer when terminating staff is the employer's requirement to pay severance.

Thai law provides a general requirement for employers to pay severance to staff to be terminated unless legal cause for the termination is present.

The amount of severance payable by the company is calculated using a formula set forth by statute. This formula takes into consideration the employee's period of continuous employment with the company as well as the employee's daily wage rate as of the date of the termination.

Below is a chart stating the relationship between the employee's period of employment with the company and the minimum amount of severance which is payable upon termination.

Severance Payable

Employed at least 120 days, but less than 1 year 30 days wages

Employed at least 1 year, but less than 3 years 90 days wages

Employed at least 3 years, but less than 6 years 180 days wages

Employed at least 6 years, but less than 10 years 240 days wages

Employed more than 10 years 300 days wages

For example, suppose an employee has worked at a company continuously for period 7 years is terminated. Also, suppose no legal cause for the termination is present.

The above chart states that the amount of severance payable to such an employee who has worked continuously for the same employer for at least 6 years, but less than 10 years is equal to 240 days wages.

Therefore, in the above example the minimum amount of severance payable to the employee (before taxes) who has worked continuously with the company for 7 years would be calculated as follows.

Daily Wage Rate * 240 Days = Severance Payable.

The employee's daily wage rate is generally determined by taking the employee's monthly wage rate as of the date of termination and dividing by 30 (Monthly Wage Rate / 30 = Daily Wage Rate).

Using the above example, if the employee's monthly wage rate is 60,000 Baht as of the date of termination, the severance payable to the employee (before taxes) would be calculated as follows.

60,000 Baht (Monthly Wage Rate) / 30 days = 2,000 Baht Daily Wage Rate

2,000 Baht (Daily Wage Rate) * 240 days = 480,000 Baht Severance Payable.

Severance is payable by the company before the effective date of an employee's termination.

As stated above, Thai law dictates that severance is generally payable to an employee to be terminated unless the company can establish legal cause for termination.

In order to demonstrate legal cause, the applicable statute states that the employer must establish that the employee exhibited any one of six types of behavior toward the company.

These types of behavior can be summarized as follows.

The employee

1) performs duties dishonestly or intentionally commits a criminal act against the employer;

2) intentionally causes employer to suffer losses;

3) performs act of gross negligence which causes employer to suffer severe losses;

4) violates employer's work rules or regulations or orders which are legal and fair after the employer has already given a written warning, except in serious situations in which case the employer is not required to give written warning;

5) neglects duties for 3 consecutive work days without reasonable cause, whether or not there is a holiday intervening in such period; or

6) has been imprisoned by final judgement except for offenses arising out of negligent acts or for petty offenses.

If the employer can establish that any one of the above types of behavior is present the employer is not required to pay severance to the employee to be terminated.

Employers who intend to withhold payment of severance in this situation should have clear documentation on file demonstrating that any one of the above 6 types of behavior is present.

Edited January 26, 2009 by joskydive

[Mario2008]

Agree with Joskydive, Thai courts are unbiased. That goes certainly for labour court and family court. Get yourself a good lawyer and someone who can translate for you in court if necesarry. If it comes to a trail the last one is very important.

[ray08]

Hi there,

I am looking for a bit of advice and moral support...

Our driver is suing us for unfair dismissal... He worked for us for 18 months and he has a written contract that was badly translated from English to Thai which says he'd be employed for 3 years pending good performance.

We only paid him one and half month pay.

He's asking for one month notice pay + 3 months and the remaining of the 18 months.

My husband consulted a lawer and was told that Thai usually always wins over Farang and that the driver has every ground to win since we did not give him written warnings - only 3 verbal ones.

Thanks for any advice...

I have been sued in the Thai Labour Court , so 3 verbal warnings count for nothing , the court will ask you to compromise,his last salary must be paid in full and 3 months salary as well ,One month notice is not required ,

I don,t beleive the contract will hold up , but the 3 months must be paid ,

The thai labout court IMO is no worse or no better than most labour courts, they are for the benefiet of the Employee not Employer.

Last point , be carefull on lawyers fees ,as it is a very simple matter, in fact i argued my case to the judge much more than my lawyer ,

[sleepyjohn]

Baby Panda

....your very poor presentation of the facts above suggest no reason why you deserve "moral support". You haven't even said why you sacked him early instead of the 3 years you contracted for. Neither have you told us why you let the contract be poorly translated to Thai.

[PattayaParent]

Baby Panda

....your very poor presentation of the facts above suggest no reason why you deserve "moral support". You haven't even said why you sacked him early instead of the 3 years you contracted for. Neither have you told us why you let the contract be poorly translated to Thai.

I think the OPs point is that he did NOT contract his driver for 3 years.

Can you read Thai well enough to check a contract of employment?

[BabyPanda]

Thanks guys for all your answers.

I didn't go into the details of why we got rid of him because the list is way too long!

You're right PattayaParent, we don't read thai...

We managed to agree on a settlement ~ 4 month pay. We will still have to go to court but it should only be a formality. Hopefully it's the end of it!