Thai Labor Law And Severance Pay

[markg]

We're just about on the correct side of civility gentlemen. Let's make sure we keep it there, eh.

This has certainly been a nice lively topic, with intelligent discussion from all.

I for one am pretty confused.

Guess the underlying advice is, if in doubt, be aware that you could (and possibly should) contact a lawyer.

[wangsuda]

^And . . .

1. Never be afraid to ask

2. Don't believe everything the schools tell you

[paulfr]

Anyone have the address and or directions to the labor court on Rama 4 ?

Phone number ?

Help most appreciated.

Edited February 19, 2009 by paulfr

[Phatcharanan]

I contacted my local labour office and asked them. Have you? It's very easy.

Why would schools employ teachers on 1-year contracts if it wasn't a way to avoid financial obligations? It works.

Then I guess it depends on where you are located and what lawyers you use. To state that your take on this applies across the board is wrong.

I worked for a well known Catholic PRIVATE school in Bangkok for 3 years. Usual 1 year contract with the addition written in if that I re-signed for another year etc my salary would increase by another 5,000 a month. After 3 years they decided not to renew my contract and flatly refused to offer any severence saying they were not required too. They subsequently hired another teacher for 15,000 baht a month less.

I contacted a labour Law specialist in Bangkok and to cut a long story short we went to court. My lawyer successfully argued that the school were using 1 year contracts as a way of circumventing Thai Labour Law regarding severence pay for a 3 year period. The judge agreed. He also advised both sides to take a break for 1 hour and to come to some voluntary agreement, or he would impose one.

The school agreed to pay me 4 months wages and pay my lawyers fees. I accepted. Payment received 3 days later via my lawyer.

Another teacher some months later tried the same with a different school, different lawyer....and lost.

The lawyer you use is very important. If he convinces the judge that they use 1 year contracts to get around the Labour Law, you have a good case.

You, and I, may not like the current situation but it's reality until something changes

Edited March 4, 2009 by Phatcharanan

[John@KSR]

Hi

I have previously been told this by a lawyer, but I didn't pay for the advice, so...

Locals employed into full-time employment have a start date, but no end date to their employment. Schools that offer contracts offer them with fixed terms, always providing end dates. As such those who sign a contract are not regarded as proper full-time employees - they are contracted for the period stated. Thus, when a contract runs out, that's it.

However, there can be no assumption that any contract 'rolls over'. Unless a new contract is signed, with a fixed term, an employee is regarded as being full-time under Thai law, and all conditions of full-time employment apply. So, if you sign a contract for a year, but work longer than this, you are legally considered a full-time employee and the terms of the original contract no longer apply.

Schools that regularly administer new contracts (providing a new one as soon as an old one expires) are therefore carefully (and legally) avoiding the potential for having to pay any form of severance / redundancy pay to full-time employees.

Don't know if that's right, but...

J

Here's the scenario: a person has worked for a private school continuously for five years. Each year, this person completes a contract and then renews the contract. This person has had a work permit and non-B visa during the entire time of employment. This person has paid taxes and filed tax returns. It has now come to the time for this person to move on. The big question is, does this person qualify for severance pay? According to Thai labor law

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

1.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

2.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.

3.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.

4.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.

5.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.

This person thinks that s/he is entitled to 180 days of severance pay as per Thai labor law. However, upon further reading, this person also finds:

An employer is not required to pay severance pay to an employee whose employment has been terminated for any of the following reasons:

1.Resignation

2.Dishonest performance of his duties or the intentional commission of a criminal act against the employer;

3.Intentionally causing loss to the employer;

4.Performance of gross negligence which result in severe loss to the employer;

5.Violation of the employer's work rules or regulations or order which are both lawful and equitable when the employer has already issued the employee with a prior written warning, except in a serious instance when the employer is not required to give a warning.

The written warning shall be effective for a period of one year as from the date of the commission of the violation by the employee;

6.Neglect of his duties for a period of three consecutive work days without reasonable cause, whether or not a holiday intervenes;

7.Imprisonment by reason of a final judgment.

8.An employment contract shall be terminated when the specified period in the employment contract expires, the works related are as follows:

8.1 Employment on a special project, which is not in the normal way of business or trade of the employer, where there is a fixed schedule for commencement and completion of work.

8.2 Work of a temporary nature with a fixed schedule for its commencement or completion.

8.3 Seasonal work in respect of which employees are only engaged during that season; provided that the work most be completed within a period of two years and the employer and employee have entered into a written agreement at or prior to the commencement of employment.

Now this is a new wrinkle; does finishing a contract and not signing a new one constitute “resignation,” and therefore no severance pay? Is teaching at a private school considered “temporary,” “seasonal,” or a “special project?” What is this person to do? Should s/he ask about the amount of severance with their current employer? How should this matter be brought up? And what recourses does this person have if the current school proves to be difficult in realizing that Thai labor law also applies to foreigners? And most important, do foreign, legal, private school teachers even stand a snowball's chance in hel_l of collecting severance pay? Your help in this matter would be appreciated.

Information about the Thai labor law came from http://www.thailabour.org/law/thai/code.html#no

[Phatcharanan]

Hi

I have previously been told this by a lawyer, but I didn't pay for the advice, so...

Locals employed into full-time employment have a start date, but no end date to their employment. Schools that offer contracts offer them with fixed terms, always providing end dates. As such those who sign a contract are not regarded as proper full-time employees - they are contracted for the period stated. Thus, when a contract runs out, that's it.

However, there can be no assumption that any contract 'rolls over'. Unless a new contract is signed, with a fixed term, an employee is regarded as being full-time under Thai law, and all conditions of full-time employment apply. So, if you sign a contract for a year, but work longer than this, you are legally considered a full-time employee and the terms of the original contract no longer apply.

Schools that regularly administer new contracts (providing a new one as soon as an old one expires) are therefore carefully (and legally) avoiding the potential for having to pay any form of severance / redundancy pay to full-time employees.

Don't know if that's right, but...

J

Its not correct. It has been successfully argued that schools cannot continually use 1 year contracts as a means of circumventing statutory Thai Labour Law as a means of escaping their obligations regarding severence pay.

i.e 3 x 1 year contracts has been legally argued to mean 3 years continuous service.

[Loaded]

Its not correct. It has been successfully argued that schools cannot continually use 1 year contracts as a means of circumventing statutory Thai Labour Law as a means of escaping their obligations regarding severence pay.

i.e 3 x 1 year contracts has been legally argued to mean 3 years continuous service.

Nearly everyone who has made a claim or statement on this thread has supported their words with a link to Thai law or another source. One of the exceptions is you. Any support for your claim? Your argument is wholly unconvincing unless you show some evidence... pretty please. 'My mate Dave told me...' doesn't wash here me ol' china.

[Ijustwannateach]

Out of fairness, most individual labour disputes are not going to be terribly newsworthy and it is unlikely there will be a linkable source, unless it involves an entire school or a labour movement. I'm inclined to believe most of the labour-friendly stories, as those have been the trend I have seen among colleagues and acquaintances of my own.

Workers of the world, unite!!!

[wangsuda]

Workers of the world, unite!!!

OR: Dyslexics of the World: Untie! Sorry, I couldn't resist. Back on topic - thank you all for your responses. While there is no definitive answer, it seems that giving the labor board a call cannot hurt anything.

[Phatcharanan]

Its not correct. It has been successfully argued that schools cannot continually use 1 year contracts as a means of circumventing statutory Thai Labour Law as a means of escaping their obligations regarding severence pay.

i.e 3 x 1 year contracts has been legally argued to mean 3 years continuous service.

Nearly everyone who has made a claim or statement on this thread has supported their words with a link to Thai law or another source. One of the exceptions is you. Any support for your claim? Your argument is wholly unconvincing unless you show some evidence... pretty please. 'My mate Dave told me...' doesn't wash here me ol' china.

One of the exceptoions is me? Errrrrrrrrr is your eyesight failing?

It happened to ME. I won. Not " My mate Dave........" Duhhh!

A link? Let me think about that ...........thinking.......I KNOW it was major Headline news in the Bangkok Post and The Nation for weeks.........."Foreign Teacher wins dispute with Thai Catholic School......walks away smiling..........immediatley gunned down by irate Thai Principal".

I can,t give you one...........but it happened. Ask a real lawyer for advice.

[Loaded]

One of the exceptoions is me? Errrrrrrrrr is your eyesight failing?

It happened to ME. I won. Not " My mate Dave........" Duhhh!

A link? Let me think about that ...........thinking.......I KNOW it was major Headline news in the Bangkok Post and The Nation for weeks.........."Foreign Teacher wins dispute with Thai Catholic School......walks away smiling..........immediatley gunned down by irate Thai Principal".

I can,t give you one...........but it happened. Ask a real lawyer for advice.

I'll have to take your word for this Dave.

[Phatcharanan]

but it happened. Ask a real lawyer for advic

One of the exceptoions is me? Errrrrrrrrr is your eyesight failing?

It happened to ME. I won. Not " My mate Dave........" Duhhh!

A link? Let me think about that ...........thinking.......I KNOW it was major Headline news in the Bangkok Post and The Nation for weeks.........."Foreign Teacher wins dispute with Thai Catholic School......walks away smiling..........immediatley gunned down by irate Thai Principal".

I can,t give you one...........e.

I'll have to take your word for this Dave.

Actually.....it begins with an "S". Try not to worry. I,m sure help is available for you.

[MyNameMe]

Its not correct. It has been successfully argued that schools cannot continually use 1 year contracts as a means of circumventing statutory Thai Labour Law as a means of escaping their obligations regarding severence pay.

i.e 3 x 1 year contracts has been legally argued to mean 3 years continuous service.

Nearly everyone who has made a claim or statement on this thread has supported their words with a link to Thai law or another source. One of the exceptions is you. Any support for your claim? Your argument is wholly unconvincing unless you show some evidence... pretty please. 'My mate Dave told me...' doesn't wash here me ol' china.

Interesting comment.... You ask for supporting evidence, so I can give you some. A law firm I know VERY well is currently going through the courts with a case similar to the discussions here, the point has also been raised about the annual contracts and the judge threw it out already, as already discussed it was just a method for circumventing the labour law, by which ALL employees are covered.

PM me if you need further confirmation of have any specific questions.

Mynameme

[Loaded]

Interesting comment.... You ask for supporting evidence, so I can give you some. A law firm I know VERY well is currently going through the courts with a case similar to the discussions here, the point has also been raised about the annual contracts and the judge threw it out already, as already discussed it was just a method for circumventing the labour law, by which ALL employees are covered.

PM me if you need further confirmation of have any specific questions.

Mynameme

No reason to doubt a similar case is going through the labour court. Just one question: if the court has already 'thrown out' the point concerning annual contracts, why is is still 'going through' the court system?

[paully]

^ An appeal against the first judge's ruling, perhaps - or that only one part of the claim has been thrown out?

[Loaded]

^ An appeal against the first judge's ruling, perhaps - or that only one part of the claim has been thrown out?

Or maybe thrown out and not considered because it was irrelevant. Mynameme I hope will clarify.

[MyNameMe]

^ An appeal against the first judge's ruling, perhaps - or that only one part of the claim has been thrown out?

Or maybe thrown out and not considered because it was irrelevant. Mynameme I hope will clarify.

The school is arguing many points to get out of paying anything, one of which was that compensation doesn't need to be paid because of the a statement in the contract that contravines the labour law, not good for someone who should get compensation for working for over 4 years at a single school. The school has tried many tricks even trying to convince the judge that the teacher was incompetent, a liar, a thief, resigned and a few other bad things as well... None of which the school can substantiate, but it takes time in court to prove anything. Don't forget that in the land of smiles, you're guilty before innocent, making it take a long time to prove all these points..

Mynameme

[Loaded]

^ An appeal against the first judge's ruling, perhaps - or that only one part of the claim has been thrown out?

Or maybe thrown out and not considered because it was irrelevant. Mynameme I hope will clarify.

The school is arguing many points to get out of paying anything, one of which was that compensation doesn't need to be paid because of the a statement in the contract that contravines the labour law, not good for someone who should get compensation for working for over 4 years at a single school. The school has tried many tricks even trying to convince the judge that the teacher was incompetent, a liar, a thief, resigned and a few other bad things as well... None of which the school can substantiate, but it takes time in court to prove anything. Don't forget that in the land of smiles, you're guilty before innocent, making it take a long time to prove all these points..

Mynameme

So no result yet.

[mopenyang]

Did anyone happen to see the ad in the Bangkok Post by one of the well known international law firms advertising that it will handle labour cases on a no fee basis pending a victory? Interesting stuff.

[MyNameMe]

^ An appeal against the first judge's ruling, perhaps - or that only one part of the claim has been thrown out?

Or maybe thrown out and not considered because it was irrelevant. Mynameme I hope will clarify.

The school is arguing many points to get out of paying anything, one of which was that compensation doesn't need to be paid because of the a statement in the contract that contravines the labour law, not good for someone who should get compensation for working for over 4 years at a single school. The school has tried many tricks even trying to convince the judge that the teacher was incompetent, a liar, a thief, resigned and a few other bad things as well... None of which the school can substantiate, but it takes time in court to prove anything. Don't forget that in the land of smiles, you're guilty before innocent, making it take a long time to prove all these points..

Mynameme

So no result yet.

In fact, we have had a result. Some payments have been made, however, as you can imagine, I can't discuss the full details of an ongoing case and all the complexities involved here.

Mynameme

[Loaded]

I've been playing devil's advocate on this thread as I'm not convinced severance is payable if a contract ends naturally(ie employment is not terminated). 'Termination' is the key word in Labour Law. However, it's been suggested to me that I may be trying to promote my own personal agenda. No problem - I'll leave this thread alone now.

[MyNameMe]

I've been playing devil's advocate on this thread as I'm not convinced severance is payable if a contract ends naturally(ie employment is not terminated). 'Termination' is the key word in Labour Law. However, it's been suggested to me that I may be trying to promote my own personal agenda. No problem - I'll leave this thread alone now.

I think that sometimes you need a devils advocate to make sure that people really do think about what they are saying. Personally, I'm not 100% convinced that severance is payable at the end of a contract, but I'm not using Thai law making that statement. Thai law is a law unto itself, and their judgements don't always make sense.

Mynameme

[kiwikoppy]

hey Mynameme

Good luck with your case, i am currently starting one myself too.

I am not a teacher but it happens in other fields as well.

My ex employes does not want to pay me after almost 2 years of service. after letting my lawyer writing them a letter to claim the money. They now claim that i just did not show up to work anymore and that i was never fired.

probably gonna take a long time before the case is finished but i know i am in my right.

[jjspitz]

"Termination of employment in this Section shall mean any act of an employer which prevents an employee from continuing to work and receive his basic pay therefore, whether due to the termination of an employment contract or for any other reason, and shall include the situation where an employee cannot work and be paid because the employer can no longer operate its business.

The provisions of Paragraph 1 shall not apply to an employee whose period of employment is of a fixed duration and whose employment is terminated at the expiration of that duration. "

Just to flog a dead horse..... I would have to argue that teaching at a school does not fall under the fixed duration clause. It's not temporary work, contracted period or not. Read privision 8.1 again. Teaching is not outside the normal employment operation of a school. Resignation , as in the op's case, constitutes severance without pay. But if you don't resign and the school doesn't offer you a new contract, then I'd say you are due severance pay contract expired or not, based on the above statement.

[mmcsusnret]

Maybe a little off the beaten path, but if you're on a Non Imm B visa, when this starts, what becomes of the getting out of Thailand on very short notice issue, because the school will obviously try to stop your work permit and notify immigration?

[PaulyJ]

Did anyone happen to see the ad in the Bangkok Post by one of the well known international law firms advertising that it will handle labour cases on a no fee basis pending a victory? Interesting stuff.

Went to said 'well known international law firm' - well my mate Dave did. He said that there were catches...a deposit of around 20,000B up front, as well as a possible non returnable 'consultancy fee' to pay for the time taken by their lawyers to decide whether or not to take the case.

Phatcharanan - would you be able to point my mate Dave in the direction of the lawyers that you had success with..? And what were the fees like?

Thanks!

[Scott]

Loaded: I hope you stay around the thread. Nothing wrong with being the Devil's Advocate. I've talked to several people who should be 'in the know' on the issue and they tend to agree with you. One, a lawyer, said that a lot of victories are because employers fail to pursue the issue and are willing to pay out some money rather than go to court.

Also, we don't always know the intricacies of specific cases.

[Ijustwannateach]

^says a fellow managerial type- (just for transparency's sake, of course). Always consider the source.

[kiwikoppy]

@ jjspitz

You are right with that clause. In The Thai Law it is useless to make contracts that have ending dates for positions of normal employement. Teaching is a normal employment for a school. So ending date or not when a contract does not get renewed you do have a right to severance pay.

Fix time contracts are only allowed for positions out of the normal spectrum of a company, so for example when a school hires a painter for 1 months to repaint the building. He won't have rights to severance pay.

So in a short way, nearly everybody has rights to severance pay when fired or released!!

everyone fight for it!!

[kiwikoppy]

With 1 month I mean 1 year