Thai Labor Law And Severance Pay

[Loaded]

I guess we need to find out what "central administration, provincial administration and local administration" is/means.

It seems to me, if true, no government worker anywhere in the Kingdom is eligible for severance pay.

It's an interesting point. Thai government workers/teachers often comment that they accept low salaries in return for job security IE can't be fired and therefore severance is not applicable. However, Thai government institutions cannot employ foreigners directly, as a result they create a special employment agreement (อัตราจ้างพิเศษ). I'm sure this puts farang teachers outside of the exclusion provision above and makes them eligible for severance.

Edited August 20, 2009 by Loaded

[paulnewman]

I'm in the provinces, being kicked out, have little time/money. Have full teaching load within which almost impossible to jobhunt/interview.

I believe any rational person would consider employer's actions wrong. They (mostly one mid rank b'crat, who has influenced others.) I realize judges not interested in he said, she said... just trying to explain my situation...

Lawyer's help costs money (?) eats huge chunks of (like travel) time.

Apologies for hasty post.

If someone with a less stressed mind (than I) could offer some suggestions, would be much appreciated.

Gotta run right now...

[paulnewman]

"It seems to me, if true, no government worker anywhere in the Kingdom is eligible for severance pay."

Per logic [heh] of what I was told and reported, seems that way to me too. I talked with a youngish Thai teacher today who said there are 3 kinds of employees (here at the gov't institution).

1. What we usually think of as Ratchagan / Gov't officers. Broadly speaking, the oldies who have been teaching 10 years or so.

2. The younger Thai teachers, many of whom only have a B.A. If they have a problem with the boss it will be discussed with them in the setting of (an apparently ad hoc) committee. Barring an enlightened administration, they basically have to kiss-up to their immediate boss, (or maybe clean up their act - job performance... depending on the situation) but the meeting, at least, is expected as a sort of right... seems it's in the law or regs, not sure. These folks do not have a year-by-year contract, and almost surely don't get dismissed, but they won't get promoted, get huge workload, and could be transferred (my wife says this transfer stuff is oft-reported in the news, etc.). So apparently severance isn't an issue as they would only get canned with really serious [like breaking the law] cause, and with appropriate written warnings, etc., couldn't claim protection under labor law anyway.

3. Foreign teachers, groundskeepers, and presumably many clerks and such. No rights, no meeting. Again, teacher I was talking with had no idea about severance due or not. This is the category--assuming this this catigorization has any value in fact--which I am in, and concerned with in this discussion.

"It's an interesting point. Thai government workers/teachers often comment that they accept low salaries in return for job security IE can't be fired and therefore severance is not applicable."

Generally, I think that applies to (1) in the the stereotypical sense, to (2) in a more practical sense... go along to get along, and I suppose many seek promotion.

"However, Thai government institutions cannot employ foreigners directly, as a result they create a special employment agreement (อัตราจ้างพิเศษ). I'm sure this puts farang teachers outside of the exclusion provision above and makes them eligible for severance.

Can you point to any references or documentation for that? Where do you get the first assertion from? How can one discern that something is a "special employment agreement"? That word does not appear in my contract, fwiw.

[Scott]

A few weeks back we had an employee who was terminated with no notice. She was alleged to have injured a child, which she denied. The situation became rather tense when the parents showed up and a hasty meeting was scheduled for the teacher to apologize to the parents and all would be OK. I wasn't informed and so she ended up dealing with it without the benefit of much guidance on the issue. The outcome was less than satisfactory and she was terminated.

This was done to by the Thai Admin. A few days later she came in to see me and discuss her situation, which I can do nothing about. I did express a great deal of sorrow for her situation. The upshot is that she will be paid for the entire month--roughly 1/2 month of 'severance'. She asked me if she should go to the Ministry of Labour. I advised her that in my official capacity at the school I would have to discourage this. I added a big but and then dropped a few names of people who might be better able to advise her on it. I also explained, very theoretically, what I might say to the Ministry officials.

I have a feeling that after she receives her meager reward for years of dedicated service without so much as a hint of abuse, she just may go. I will post any updates.

What we need and what I wish we had access to is examples. Including the specifics of the situation to help us judge better what is and isn't permissible.

[Loaded]

Can you point to any references or documentation for that? Where do you get the first assertion from? How can one discern that something is a "special employment agreement"? That word does not appear in my contract, fwiw.

The horse's mouth:

http://www.ajarn.com/interview_at_moe.htm

Scroll down

[paulnewman]

Scott,

That's sad.

Just to be sure: the terminated employee was a non-Thai working at a government institution (a government school, college, or university), is that correct?

I agree that we are much in need of how actual cases were decided in judicial proceedings.

[paulnewman]

However, Thai government institutions cannot employ foreigners directly, as a result they create a special employment

agreement (อัตราจ้างพิเศษ). http://www.ajarn.com/interview_at_moe.htm

I'm sure this puts farang teachers outside of the exclusion provision above and makes them eligible for severance.

Well, we could all be sure if a court said so and it held up on appeal by the institution. Unfortunately, a more than 20-hour teaching schedule, looking for a new employer and new home doesn't leave one with a lot of free time to engage in the process. More difficult still if one is short on cash.

Can one initiate an action a month or two after having taken care of some that business? My recollection is that deadlines set in only after the process is initiated. Does anyone know offhand?

Thank you for that link, Loaded.

[Scott]

The situation I mentioned occurred at a private school. The teacher was a foreign teacher (Asian, but not Thai) and she had several years of good service without a hint of abusive behavior. A Thai teacher was seen handling the child quite roughly and sometime later the Foreign Teacher saw him crying and went to attend to him. She was then accused of having injured him.

There was really no investigation--just some quick questioning and she got blamed, including by the child (who is very young). Whether or not she was guilty of anything, I really don't know, but if she was it was completely by accident.

If I am informed, I suspend the teacher (with pay) pending an investigation. Then there is a meeting to decide the course of action--nothing, warning, termination--and then the teacher is informed. Part of the suspension is to diffuse the situation since parents and others may be a little too angry to deal with in a rational manner.

Usually, there is a meeting between the teacher, admin and the parents. In this case, that's where things broke down.

But back on topic, it will be interesting to see if she gets severance pay (or anything else). If she decides to go to the MOL.

[paulnewman]

However, Thai government institutions cannot employ foreigners directly, as a result they create a special employment

agreement (อัตราจ้างพิเศษ). http://www.ajarn.com/interview_at_moe.htm

I'm sure this puts farang teachers outside of the exclusion provision above and makes them eligible for severance.

I looked at that moe interview linked above again today...

Conditions regarding employment as a government officer:

1. Must have at least a first degree

2. Maximum starting salary 7,xxx Baht. (Seven Thousand something Baht).

3. A Thai Government Officer must have Thai nationality.

4. A Thai Government Education Institute Teacher is a Thai Government Officer.

SO, either:

1. …Per 4, all teachers here are Thai Government Officers--Impossible, because, per 3, Non-Thais can't be Gov Officers. …OR…

2. This institution is not a Thai Government Education Institute…or, more clearly, I am not a Thai Government Education Institute Teacher (see below)

Therefore, the normal practice in government schools, colleges, and universities when they hire foreign teachers is to create a special employment agreement (อัตราจ้างพิเศษ ) between the teacher and the individual institute.

Unfortunately, my brain hits a wall there. Need a lawyer, I guess.

[paulnewman]

Went to Labor Dept. recently with question on severance pay. Appropriate employee there said foreign teachers at government institutions (for example Chulalongkorn or Thammasat Universities and many other such), as well as government--as opposed to private--primary and secondary schools, are NOT entitled to severance pay.

Why? She pointed to Section 4 of the "Labour Protection Act B.E. 2541" (A.D. 1998):

"This Act shall not apply to:

(1) central administration, provincial administration and local administration; and [snip]"

In (1) above, "central administration" (ratchagan suanglang) was the applicable reference.

She also gave as example some of the Thai workers in her office, who were busy doing something at computers and folding brochures. Same law for them.

[snip quote]

I wonder if these helpful, kindly people behind the desks at the Labor Department follow what's happening in the courts? I mean, not only do courts enforce the law (impose penalties, etc.), but--one would hope--also interpret the law in the case of litigants presenting opposing views. I could imagine the lady behind the desk not liking this question if it were not phrased diplomatically and carefully.

(Long ago, in a far away land, I helped a lovely old lady just months from retirement get fair treatment from our creepy employer who was trying to fire her very unjustly. He fired ME for that. I went to the Legal Aid Society office, we won, and I donated all the money to Legal Aid. Wasn't supporting a family of my own at the time. Some would say I should have bought Bechtel or Halliburton or Goldman Sachs stock with the money instead. Such is life.)

[Ijustwannateach]

Any 'special' agreements would still qualify as contracts, and if the foreign teacher were not in the 'excluded' zone severance would be due. Consult a lawyer, assert your rights.

[paulnewman]

How does a farang find a good lawyer here in Thailand, preferably one who has experience with this area of the law?

I would suppose, that with the references often made to teachers having won, presumably with the aid of a lawyer, that some names of the successful lawyers or firms--or ones with some expertise in this area--would be available, or some information leading directly to them... alas, I have yet to find such information here (or anywhere). Am I missing something?

Thanks in advance for any solid leads.

[MyNameMe]

How does a farang find a good lawyer here in Thailand, preferably one who has experience with this area of the law?

I would suppose, that with the references often made to teachers having won, presumably with the aid of a lawyer, that some names of the successful lawyers or firms--or ones with some expertise in this area--would be available, or some information leading directly to them... alas, I have yet to find such information here (or anywhere). Am I missing something?

Thanks in advance for any solid leads.

I know a couple of law firms that could do this type of case, but most would want a huge chunk of cash up front to even look at the case. One of the companies offering no-win no-fee is talking rubbish as they wanted 30,000 on the table as an 'administration fee'. The one company I know that would have a look at this type of case is a law firm called Pearson Thongoui. It would be worth contacting them with the details. their website is located at www.pearsonthongoui.com you can find all their contact details there.

MNM

[Loaded]

How does a farang find a good lawyer here in Thailand, preferably one who has experience with this area of the law?

Go to your local Labour office. They are very supportive and will pressure your employer, if you have a case, to pay. If this doesn't work, they will force the employer to go to labour court. The labour court supplies (they did for me anyway) a lawyer free to help prepare your case. In the courtroom the judges will question you directly so little need for an expensive lawyer imo. Unless your Thai is very strong, you will need a translator.

Edited September 12, 2009 by Loaded

[Loaded]

However, Thai government institutions cannot employ foreigners directly, as a result they create a special employment

agreement (อัตราจ้างพิเศษ). http://www.ajarn.com/interview_at_moe.htm

I'm sure this puts farang teachers outside of the exclusion provision above and makes them eligible for severance.

I looked at that moe interview linked above again today...

Conditions regarding employment as a government officer:

1. Must have at least a first degree

2. Maximum starting salary 7,xxx Baht. (Seven Thousand something Baht).

3. A Thai Government Officer must have Thai nationality.

4. A Thai Government Education Institute Teacher is a Thai Government Officer.

SO, either:

1. …Per 4, all teachers here are Thai Government Officers--Impossible, because, per 3, Non-Thais can't be Gov Officers. …OR…

2. This institution is not a Thai Government Education Institute…or, more clearly, I am not a Thai Government Education Institute Teacher (see below)

Therefore, the normal practice in government schools, colleges, and universities when they hire foreign teachers is to create a special employment agreement (อัตราจ้างพิเศษ ) between the teacher and the individual institute.

Unfortunately, my brain hits a wall there. Need a lawyer, I guess.

So, you don't understand that the special employment agreement is to circumvent the condition that Thai government schools can only employ Thai nationals directly?

That's strange.

[elkangorito]

I guess we need to find out what "central administration, provincial administration and local administration" is/means.

Conditions regarding employment as a government officer:

1. Must have at least a first degree

2. Maximum starting salary 7,xxx Baht. (Seven Thousand something Baht).

3. A Thai Government Officer must have Thai nationality.

4. A Thai Government Education Institute Teacher is a Thai Government Officer.

After some enquiries at my place of work, I "think" I am NOT a Government Officer.

I say this because;

1] I am not Thai & therefore,

2] I am not a Civil Servant & subsequently do not receive nor am I entitled to, any fringe benefits that Civil Servants may currently receive & therefore,

3] I have not been issued nor have I been required to purchase & nor am I entitled to wear, a "military style" uniform as worn by Civil Servants (on certain occasions).

If I am not a Government Officer, I am not a part of the Central Administration, Provincial Administration and Local Administration. As such, I believe that I am fully entitled to severance pay.

[paulnewman]

How does a farang find a good lawyer here in Thailand, preferably one who has experience with this area of the law?

Go to your local Labour office. They are very supportive and will pressure your employer, if you have a case, to pay. If this doesn't work, they will force the employer to go to labour court. The labour court supplies (they did for me anyway) a lawyer free to help prepare your case. In the courtroom the judges will question you directly so little need for an expensive lawyer imo. Unless your Thai is very strong, you will need a translator.

I apologize for not updating my part of this thread. An oversight due to stress and carelessness.

Thank you MyNameMe, post 133, for that reply to exactly what I was asking for!

Loaded at 134, I DID GO TO THE LABOUR OFFICE, and said so in post 119, which was also quoted later. In my particular government university case, as I said, THEY WERE NOT SUPPORTIVE of my claim for severance pay, pointing to Section 4 of the "Labour Protection Act B.E. 2541" (A.D. 1998):

"This Act shall not apply to:

(1) central administration, provincial administration and local administration; and [snip]"

In (1) above, "central administration" (ratchagan suanglang) was the applicable reference.

She knew my job was at a government university. She knew which one, in the same province. She said the law above didn’t apply in my case. She came nowhere near offering me services of a lawyer. I wasn’t going to argue with her. I and my capable translator said thank you and left.

THE BEST THING TO DO IS TALK WITH A LAWYER. I am doing so. I would by no means want to discourage anyone from going and talking to the local labor office about their particular circumstances, but if what they say seems wrong, don't stop there, in my opinion.

When I have something useful, one way or the other, to report, I shall try to do so.

[Ijustwannateach]

Solidarity, brother!

[Scott]

Best of luck and keep us informed.

[mozartthai]

Hello,

I teach in one of the biggest IS here Bangkok. Last, October we received our letter of intent which is a way for our school to find out who among the teachers are planning to stay for next school year. In previous years, I am categorized as an expat and receives all the benefits of an expat teacher. In this new letter of intent I am now categorized as a non-native speaker/Asian and will not get the same benefits as my western colleagues for reasons that the school is having financial problems. It was discriminatory in nature because it affects only the Thais and other asians who are teaching subjects in which they are not a native speaker. It means that if you are a Japanese teaching Japanese language you are not affected. When we "the affected ones" made "noise" about this discriminatory action they came out with a new letter of intent. Attached to this letter is a new salary scale will a much less base salary compared with what I am receiving currently. The school actually is lowering the salaries of (only) the long serving teachers. Not only that they lowered the figures in every step of the scale (steps are supposed to be the yearly increase that we have accumulated) but also that they capped steps way below than the step we actually do belong. For example, I have been working in this school for 21 years but now the highest step in my category is step 12 and for that I will lose 32 thousand baht. Their argument is to put everybody in one scale and its fair. I thought that this is very unfair because it only affects the long serving teachers. If the school is actually having financial problem for whatever reason, should the long serving teachers be the ones to pay for it? Is there any recourse to compel the school to change this unfair, even discriminatory action or do we have a labor or legal ground to attain a fair and just compensation. The school is about to issue the contracts for next year, and I don't know what to do. Please help.

Edited November 16, 2009 by mozartthai

[Scott]

The situation sounds quite complicated. The affected teachers may need to consult with a lawyer or specialist is Thai Labor Laws. Hopefully we will have some informed posters here who can help or give advice.

Best of luck to you.

[Scott]

I am going to bump this topic up. I am hoping there are some posters who can either help out or point the poster (#140) in the right direction.

[paully]

The school actually is lowering the salaries of (only) the long serving teachers. Not only that they lowered the figures in every step of the scale (steps are supposed to be the yearly increase that we have accumulated) but also that they capped steps way below than the step we actually do belong. For example, I have been working in this school for 21 years but now the highest step in my category is step 12 and for that I will lose 32 thousand baht.

I should have thought (although I'm no expert on the minutiae of Thai law, I'm afraid) that you would have a case for compensation based on your great length of service even without having to prove actual discrimination. You would have a legitimate expectation that your salary and conditions of service would not be unilaterally changed by your employer to your detriment and without proper consultation or an offer of compensation, ie without your agreement/consent. It would also, alternatively, amount to a breach of the impled duty of trust and confidence that an employer owes to an employee.

But, do check with a Thai lawyer.

[paulnewman]

Regarding getting severance from a Thai government university, there is an active thread now, "TU Engineering Lecturer Faces Dismissal For The Oral Sex-for-grade Scandal"

Post #87 (4th page of the thread) links to a Bangkok Post article and quotes it. Here's part:

Thammasat University yesterday fired the engineering lecturer [...] The university did not hand down the harshest punishment, which is dismissal without a severance package, because ...snip...

So, government university / severance package! I would really like to know why TU is talking about their obligation to award severance, when my government university is claiming, in writing, they have no obligation to pay severance after not renewing my contract without cause after my 34 months consecutive paid employment there. They are claiming (insanely, it seems to me) that I was a civil servant and therefore the Labour Law doesn't apply to me per section 4 [discussed above in this thread in my posts and replies to same]

I understand he was fired suddenly, whereas I was told far in advance my contract would not be renewed, but my point is WHAT LAW OR REGULATION are TU officials referencing when they refer to severance? I'd like to see it and how it applies to me.

It could be that severance was something specified in that teacher's contract, but I would have to be convinced that a.) he had a contract, and b.) it somehow referenced severance or the Thai Labour Law. I'm thinking all that unlikely. Do non-Thais at TU get severance?

If anyone here knows anyone (Thai or not) teaching at TU, and could look into contracts and severance there, I'd be most grateful.

 

[Ijustwannateach]

I think at this point your best bet is a lawyer and/or direct contact with the Ministry of Labour; if anyone's either trying deliberately to befuddle you at your uni *or* simply incompetent (it happens- and they shouldn't be your information source for your own rights)- that will clear things up rather quickly, I imagine.

[Scott]

As mentioned, you need to talk to a lawyer. Contracts can, and often do, sign away rights that are granted by law. These rights can't be signed away in a contract. Your situation is complicated because you have several factors going on including benefits for what appears to be overseas hired teachers, locally hired teachers etc. Depending on your school's affiliation with another country, the laws of that country may apply as well as Thai laws.

You also need to be clear about the differences between benefits and perks that are discontinued and actual salary cuts.

[localangmo]

I wonder what would happen in the OP's case, if the 6th contract significantly differed from the preceding contracts.

for example, the basic terms and conditions of work, or salary were changed.

If a teacher is used to working for (say) 40k a month, doing 20 hours a week, working from 7.45 to 4.30pm.

What if they (say) offered in the new contract, 38k a month, 22 hours a week, working from 7.30 to 5pm.

The teacher may then decide to not sign the new contract due to it not being the same as the previous ones.

His job still exists, and they'd have to get a new teacher in to do it...........so would he be able to claim severence pay?

I think in the UK the above might be construed as 'constructive dismissal' and you could claim against that........they basically made you an offer that forced you to refuse it. (Yes i know we are not in the UK now, i'm just giving it as an example)

I have a friend in a similar situation to the OP. Worked full time in a school for 3 years, though via an outside agency. That agency has now lost the contract and the staffing of the English dept will be done directly by the school. The new contract differs from the agency contract in salary and hours of work.

Has my friend severed his contract? No.

The contract will expire on April 1st and that is that........isnt it?

If he doesnt sign the new school (technically new employer) contract, would he have a claim agains the agency? Surely the agency made no agreement or promise other than to pay him up to and including April 1st.

He / she would be an employee of the contract agency.. not the school. The School contract would be a new position and new contract. Your friends 1st year at this school as an employee.

[stepenwolf1958]

Now i understand why "ijustwannateach" took that nick name. Perfect choice, mate. In this mess what we are living here, that nick name tells all.

Educational system here is in chaos and need to be reorganized as soon as possible. In radical way. Before to late for children. What school's administrations are doing is out of mind, insane and very much discriminating.

Against any norms in any civilized country in the world.

Post of member 007 is very interesting. Seem like he was talking about what could happens. In fact, that kind of mess is going on. I know for 2 cases.

In the other hand, what also can happens to you and i know for 2 cases, your school will not pay to you the last month of contract. To breach the contract is so easy for any of them and it is because they know that you will not be protected so, they are free to do anything they want. Includes breaking their Law. They don't care at all. They KNOW the Law but they just don't care. However, you are alone in any situation and you have no chance against them.

It's not true that Labour Offices will help you. They will show incompetence and to tell you your"case" is not under their jurisdiction( because of this and that-blab blab) and they will leave you alone. All you can do is to engage the lawyer but that is expensive (money and time). So, FORGET about Labour Office's help. Anyway, there NOT ANY of them can speak English.

Main reason is THAIS STICK TOGETHER, so forget about Law and complains to institutions in Thailand.

Next time more about TEACHERS in Thailand(English teachers as your nightmare)...

Congratulations for high quality of discussion here, about 007 case.

Steppenwolf

[Phatcharanan]

It's not true that Labour Offices will help you. They will show incompetence and to tell you your"case" is not under their jurisdiction( because of this and that-blab blab) and they will leave you alone. All you can do is to engage the lawyer but that is expensive (money and time). So, FORGET about Labour Office's help. Anyway, there NOT ANY of them can speak English.

Main reason is THAIS STICK TOGETHER, so forget about Law and complains to institutions in Thailand.

You really have had a bad experience haven't you? Can't say anyone I know has ever had anything but help from the Labour Office.

Congratulations for high quality of discussion here, about 007 case.

Pity about your low-quality answers.

Edited January 21, 2010 by Phatcharanan

[Scott]

Let's keep this on-topic. The topic is not the 'quality' of answers.

Sharing of experiences is what a forum is about and not all people's experience is going to be the same. I am aware of people whose experience with the Ministry of Labor was less than helpful. Laws, regulations and policies are complicated.