Sick Leave And Contracts

[Chan mai roo crap]

My employer who shall remain nameless at this point has been very generous and given us teachers 4 days sick leave in our new contract.

It is my understanding that Thai labour law stipulates 30 days a year sick leave.

My question is....even if we sign a contract that restricts sick leave to anything less than that allowed for in the law, can we still insist that Thai law aces the contract?

Can anyone enlighten me?

[twschw]

I will try to find out for you, you poor soul. I certainly hope you didn't sign that contract. 4 sick days? Sheesh!

[Chan mai roo crap]

I will try to find out for you, you poor soul. I certainly hope you didn't sign that contract. 4 sick days? Sheesh!

Nope...nothing caste in stone yet. Appreciate your help in this matter. I await your findings.

[elkangorito]

Unfortunately, Thai Law seems to be written in the most simplistic of ways, often not covering detail. Could labour laws for a developed country be covered in a 109 page document? You may also notice that most of this Act is ignored by many employers.

I assume that you are paid a salary (monthly).

Section 4. This Act shall not apply to:

(1) central administration, provincial administration and local adminstration; and

(2) state enterprises under the law governing state enterprise labour relations.

Other than the cases as prescribed in paragraph one, Ministerial Regulations may be issued to exempt the application of this Act in part or in whole to any category of Employer.

Section 57.

An employer shall pay Wages to an Employee for sick leave under Section 32 equivalent to Wages of a Working Day throughout the Leave period, but not exceeding thirty Working Days per year.

You need to be sure that your employer is not exempt from any conditions of the Labour Protection Act. I would simply ask them this.

Since you are a "contractor" (see Section 5) & (I assume) you are not Thai, you therefore are not a part of central administration, provincial administration and local adminstration.

Assuming that your employer is not exempt from the Labour Laws in any way, the number of sick days cannot be reduced unless both parties agree to compensation or unless you simply accept the terms of the employer. Also, any compensation MUST be agreed upon. If you don't want compensation, your employer must give you 30 days sick leave unless you agree to otherwise.

Edited October 30, 2009 by elkangorito

[Ijustwannateach]

Yes, as far as I am aware Labour Law overrides whatever is in your contract unless the emplyer is specifically excluded from that law- and don't take their say-so for it; check with a lawyer working for you (or check with the Labour Office). I believe if the contract is signed the other clauses are still in force and the illegal ones are thrown out.

[Loaded]

My experience is that most Thai employers are as ignorant of the Labour Protection Act as most foreigners and I agree the act is written in such a simplistic manner that it's open to many different interpretations.

For example, my school recently sacked a Thai employee after it was discovered she had issued her own receipt to a parent for a study fee. The money stayed with the employee and was not entered in to the school's financial system. Nobody knew about it until an audit discovered the missing money 4 months later. The staff member admitted taking the money and issuing her own receipt which did not have any reference to the school.

Section 119 states that an employee is not due severance if he/she were fired for a 'serious offence'. The act doesn't define 'serious offence' but we considered the issuing of the receipt and keeping the money serious IE it was theft! Pretty clear I would imagine to most people that the school was within it's rights according to Section 119 of the Labour protection Act to terminate the employee's contract immediately without severance compensation. She made a claim for severance at the Labour Court. At the mediation stage of her claim the solicitor of the Labour Court pointed out that we hadn't included 'enough' specific detail in our termination letter although we had cut and pasted large quotes of their definitions from Section 119!!!! If it went to court, we would lose!!! We paid around 50% of what she claimed out of court.

Now this was a thief caught red-handed and also in her last year of employment she had been late on 40% of her working days and she still managed to walk away with a payoff <deleted>!

One other point, in my official translation of Section 119 it mentions one written warning is necessary before firing an employee. However, the court told us it is two!!!

Edited October 31, 2009 by Loaded

[mca]

My experience is that most Thai employers are as ignorant of the Labour Protection Act as most foreigners and I agree the act is written in such a simplistic manner that it's open to many different interpretations.

For example, my school recently sacked a Thai employee after it was discovered she had issued her own receipt to a parent for a study fee. The money stayed with the employee and was not entered in to the school's financial system. Nobody knew about it until an audit discovered the missing money 4 months later. The staff member admitted taking the money and issuing her own receipt which did not have any reference to the school.

Section 119 states that an employee is not due severance if he/she were fired for a 'serious offence'. The act doesn't define 'serious offence' but we considered the issuing of the receipt and keeping the money serious IE it was theft! Pretty clear I would imagine to most people that the school was within it's rights according to Section 119 of the Labour protection Act to terminate the employee's contract immediately without severance compensation. She made a claim for severance at the Labour Court. At the mediation stage of her claim the solicitor of the Labour Court pointed out that we hadn't included 'enough' specific detail in our termination letter although we had cut and pasted large quotes of their definitions from Section 119!!!! If it went to court, we would lose!!! We paid around 50% of what she claimed out of court.

Now this was a thief caught red-handed and also in her last year of employment she had been late on 40% of her working days and she still managed to walk away with a payoff <deleted>!

One other point, in my official translation of Section 119 it mentions one written warning is necessary before firing an employee. However, the court told us it is two!!!

To protect their <deleted> my wife's company have a very detailed list of rules and regulations (including reasons for warnings/termination) which new staff have to read and sign that they understand and acknowledge those rules. The details were written up by a lawyer to ensure they're watertight.

My wife fired one of the housekeepers for stealing a couple of cans of Pepsi. The woman tried to get the Labour Dept involved for unfair dismissal. Explicit rules and regs regarding theft were shown in black and white. The woman didn't have a leg to stand on. Labour tried to come over all strong but the company lawyer put them straight in the politest possible terms.

As an aside my mate back home has a car repair shop. One of the guys called in sick for 3 days. My friend popped round to see how he was doing and the guy was outside his house repairing a car to sell. About a sick as a triathalon competitor. MY friend fired him on the spot. The guy took it to court and got a payout for unfair dismissal. Now my fried has cut and dried contracts for all his staff.

Basically you've got to protect your neck to the max when employing people to make sure you don't get shafted.

[Scott]

Contracts should be designed to protect both the employee and employer and give some semblance of clarity about what can and cannot be done and the circumstances under which it is permitted. A contract cannot be written to avoid or override existing laws. In general, laws are binding (unless a court overturns it). Next in line of authority is the policies of the enforcing agency--these usually have the same force and effect as a law. Lastly is the employing agency. The employer can only play within certain limits. For example, they may have requirements about when a Dr.'s note is required, or the time and days you work. They may decide when and how you are paid--once a week, once a month etc.

[haltes]

Contracts in almost all countries can in theory have anything written into them but as there is the potential for people or companies to bargain for a position of strength, steps have been taken to ensure that normal people are not unduly disadvantaged.

Therefore some clauses can be severed or interpreted in such a way that they will benefit the disadvantaged party and there are a couple of other caveats that need to be covered i.e. you can't just hide terms away in the small print and hope nobody reads them, you need to draw people's attention to the detail as well.

Labour law absolutely takes precedence over what you sign in a contract no matter whether you signed it willingly.

Terminating someone should require a verbal warning, written warning 1, written warning 2, and then termination unless it is serious misconduct e.g. theft or fraud.

[Scott]

The Devil, however, is in the details. For example, in the area where I work, the work day is actually 6 days long, although we are only required to work five. We also have the month of April off--at least some do. This, therefore, changes the nature of the 30 days of sick leave, at least as far as the owner of the school sees it.

To be fair, however, when we have had people who have had serious illnesses or accidents, the owner has been very generous in continuing to pay them throughout the illness. We have one person on his 2nd month of sick leave and he is still continuing to get paid. It is nearing 70 days.

[Ijustwannateach]

^It's not up to the owner of your school to make those decisions- that's why Labour Law exists; to prevent the owners from 'deciding these things.' I would guess there are some words in Labour Law too about how many days a month are allowed to be working days for various kinds of jobs, that may or may not comply with the contracts at your school as written (otherwise do 'weekend' days all count as sick leave or holiday? not likely). And although it seems generous to get April off, it's largely because without doing so the owner could hardly compete with other similarly paid positions in the public sector which would then be MUCH more attractive.

It's nice when a boss is good and patronising in the old-fashioned sense of taking care of his/her employees, just because it seems like it's the right thing to do (much as your boss has been good to the teacher out on long sick leave) but I would bet that strong, clear, enforceable Labour Law is more reliable 90+% of the time when most employees are dealing with most bosses....

[Loaded]

My experience is that schools don't sack what they feel are responsible and reliable teachers. The labour court often makes decisions based solely on the actions of the employer and not the employee and I feel this is wrong.

Edited November 2, 2009 by Loaded

[Ijustwannateach]

^Well, generally that's because the employer has nearly all the cards already, being the boss...

I'm sure that a good, responsible employer can be taken advantage of by a bad employee rather than vice versa - but which situation is really more likely? If the former, then Labour Law would have been designed to protect the employers. Basically, what protects employers already is their ability not to pay, not to hire, not to renew.

[haltes]

My experience is that schools don't sack what they feel are responsible and reliable teachers. The labour court often makes decisions based solely on the actions of the employer and not the employee and I feel this is wrong.

Unless the teacher does something really bad, it is still not legal (and fair) to terminate them without following the proper procedure as laid down by Labour Law.

What you "feel" is of no consequence, the proper steps to take should be known by any company and any school. If they don't know, they should find out before they start to employ people. It's not hard to comply with:

Verbal Warning (make sure it is recorded in the records of the teacher)

1st Written warning

2nd Written warning

Termination

You have to give the teacher the chance to change and improve where he may not be performing. Oh yes and the warnings should all relate to the same issue.

[Scott]

The fact that the owner of the school decides to pay a teacher--and I might add--a teacher that she doesn't like particularly well, for well over 2 months of sick leave--and still counting is a nice gesture. Show me a Thai contract that has that it in.

This isn't the first time, I might add. We have had others and they have gone 45 days and more of sick time and paid. She's also paid the hospital bill when the insurance plan stopped. It's taken out of the salary over time.

She can be a miserly wench much of the time. She nickels and dimes people at the drop of a hat, but when the chips are down and it counts--she's there.

I, for one, will not fault such behavior.

[haltes]

The fact that the owner of the school decides to pay a teacher

She doesn't decide, she is obliged to pay the sick pay as determined by labour law

[Ijustwannateach]

And again, being more than compliant is always an option, especially if the boss is a genuinely compassionate and nice person- and again, sounds like your boss in this case is doing a swell thing- but it simply doesn't excuse them in any way from full compliance with every law in every other situation. It's the law- you don't get to go double the speed limit just because you always stop at red lights, for instance.

It's sad that things have to be that way, but it's what makes us employees and not serfs!!!