Valid Employment Contract, Wp/visa/tl Waiver ?

[BruceMangosteen]

Anyone know or have actual experience with a situation where:

-You are offered and accept a new contract with a government school...

-You present the documents to Immergration or Labor Department and are denied an Ext...

-There is no mention of these items in the contract...

-Will/does the school need to give you the 90 days wages per the contract agreement for termination without specified cause in said contract? (Government School in this example)

Thank you.

[thunder30101]

I dont know or have exp about something like this, but I would think you would have to ascertain who was at fault in the extension being denied ? Was it paperwork done by the school ? or something the applicant failed to disclose to cause the denial. My wp was denied the first time but only because of a wrong date on a form that was changed and made everyone happy. If the applicant made a false statement of any kind that was found out then the school is not responsible, but I cant see anything in paperwork that is true that cannot be changed to make it valid.

[BruceMangosteen]

I dont know or have exp about something like this, but I would think you would have to ascertain who was at fault in the extension being denied ?

Thanks, but the question is about the extensions being denied, for any reason. The fact the contract is offered implies the employer(school) has checked out the applicant/employee and for the sake of this discussion, assume the employee didn't present any false degrees etc.. At this point is my inquiry, should she be denied an unrelated item(the extensions) since not in the contract, does she have any remaining rights? One would assume so but I'm asking anyhow because nothing is ever clear and it's better to know the answer before you make a demand etc..

Edited January 9, 2010 by BruceMangosteen

[thunder30101]

No the fact that they offered a contract has nothing to do with getting a visa or wp, the contract is contingent on the applicant being able to reside in the country legally, they dont check out anything except your work history and education background. Would you as an employer be responsible for someone else's problems in not being able to stay in the country legally ? If you want a reasonable answer you need to be upfront on why this person was denied an extension, but I think you already know this person was denied for a good reason whatever it was and are grasping for straws here, what rights do you think this person should have anyway ?

[BruceMangosteen]

No the fact that they offered a contract has nothing to do with getting a visa or wp, the contract is contingent on the applicant being able to reside in the country legally,

This the crux of my inquiry. The worker can reside one way or another legally. The question again is should she be denied the proper VISA Extension and/or Work Permit, does this make the excuted work contract void DESPITE what we agree on it seems, said approvals not being a part of the contract itself. I think it is a huge leap to say that voids the contract but that is your opinion and thanks for it.

they dont check out anything except your work history and education background.

They don't even do that at many schools, but this another topic for another discussion. Have at it if you are so inclined.

Would you as an employer be responsible for someone else's problems in not being able to stay in the country legally ? If you want a reasonable answer you need to be upfront on why this person was denied an extension, but I think you already know this person was denied for a good reason whatever it was and are grasping for straws here, what rights do you think this person should have anyway ?

As indicated, looking ahead, not behind. The employer should be responsible when it is the same government which may/did deni the extension/WP. The person should have the right to have the contract met as agreed, which includes a 90 day notice unless something she did. Opinion..

[Scott]

Where I work, the contract is very specific that all conditions are based on the applicant getting the appropriate visa. Once the visa is obtained, we will take over getting the work permit.

Most laws have provisions which cancel a contract if the person who signs it is not legally allowed to sign a contract (such as a minor child).

[thunder30101]

You still have not said what the reason is for being denied a visa extension, I seriously doubt, if you cannot get an extension, that this person can legally stay here. But a simple answer for your question ??? the contract is void based upon the person not being able to fulfill the requirements with no compensation due to them. I will say I have seen numerous teachers here mess around not taking care of visa problems that ultimately leads to major headaches for them.

[BruceMangosteen]

You still have not said what the reason is for being denied a visa extension, I seriously doubt, if you cannot get an extension, that this person can legally stay here. But a simple answer for your question ??? the contract is void based upon the person not being able to fulfill the requirements with no compensation due to them. I will say I have seen numerous teachers here mess around not taking care of visa problems that ultimately leads to major headaches for them.

The person could stay here on a tourist visa, but not work legally of course. One possibility is the schools paperwork is incomplete. Another would be that the Teachers Council denied an extension waiver. There are many on the immediate horizon so I read. If we again for discussion purposes, assume the teacher/employee has done her part, and the school isn't able to provide the documents in good order, is there any duty or legal obligation for the school to pay off the teacher as per the terms of the contract, three months?

In the other members reply, it is stated that the person must be legally allowed (have standing) to sign it. Obviously she doesn't until she gets the VISA/WP and has signed prior to this, and doubt signs again later?. In addition, as I think I mentioned, the contracts I refer to don't mention these conditions at all.

Edited January 9, 2010 by BruceMangosteen

[PeaceBlondie]

The local govt. school is not the entire government. If Education Region, Immigration Police, the TCT, et al., denied her paperwork, that's not the school.

[thunder30101]

You are really not making any sense, for some unknown reason you are asking questions without telling us what the problem is other than there is some kind of problem with this persons ability to get a visa extension, while totally blaming the school and visa people. If the school paperwork is incomplete then that is an easy fix, your friend would still have a job, tct problem ? waivers are still being granted everywhere I talk to people or read about. As has already been stated just signing a contract doesnt guarantee a person employment or immediate benefits it is only an agreement with requirements for both parties to meet, your friend didnt meet these requiremenst plain and simple. Now do you want to tell the whole story here or just keep arguing about nothing ???

[BruceMangosteen]

You are really not making any sense, for some unknown reason you are asking questions without telling us what the problem is other than there is some kind of problem with this persons ability to get a visa extension, while totally blaming the school and visa people.

I'm not asking for a solution to the VISA/WP "problem". I'm asking if the contract properly and timely offered, signed and agreed to by both parties, a contract with a school which doesn't mention anything about VISA's and Work Permits, is enforcable by the worker in the instance of the notice requirement, which is a part of the contract duly excuted, to terminate without any other cause such as misconduct. Considering as you must know, March and April and part of at the least, May, are in reality vacation/holiday time the suggestion the worker is unable to perform due to a lack of a VISA/WP is also moot in this discussion.

[Spoonman]

Unless the extension denial was a fuc_kup on the schools behalf (paperwork) it was your friends fault, which = zero coin owed by the school in regards to the now nullified contract.

[ericthai]

Dude we are trying to help you, but you keep avoiding giving the complete story.

You said she can get a tourist visa and remain here, but she is not allowed to work with a tourist visa therefore she is unable to complete her part of the contract. You are are not listening and are just waiting for someone to agree with you. Don't think that is going to happen everyone is telling you if there is a mistake on the paper work from the school it can be corrected and all is solved, so the problem must be with your friend not being able to get a "B" visa and then getting a work permit, so it's her failure not the schools.. Now is this clear enough.

[Phatcharanan]

I think you will find that Thai Labour Law is very suportive and helpful towards employees.

The questions you are asking should of course be referred to a lawyer that specialises in this area.

[BruceMangosteen]

Now is this clear enough.

Again, it isn't clear "enough" because the requirement that she have a Work Permit isn't in the contract. This is the question and discussion, not I repeat again, to understand why she was denied and make a judgment based on that. The contract says perform the duties of a teacher on such and such a date. The school isn't even open as also mentioned. To make it simple for your thought process, just assume she refuses to take the Exams proving her knowledge or refuses to enroll in a culture course at her expense, and on that basis, the extension and WP denied. The lack of these documents/certificates aren't anyones fault, she never agreed to provide/acquire them and the school never required them and has employed her in the past without them.

Edited January 9, 2010 by BruceMangosteen

[Scott]

Let's try and not be too judgmental toward the employee and try to answer the questions. It is understandable that there seems to be a problem with the visa and it's always enlightening to know what the problem is, but not essential.

The laws and policies of the various ministries supersede a contract. A contract cannot legally be written to avoid them. Since most teachers start working without being fully legal, your question is interesting. So, did your friend actually 'work'. Did she actually teach? If so she may be entitled to wages. And, if so, for how long?

I am personally only aware of this happening once. I don't remember the specifics but for some reason the person wasn't given either the visa or work permit. In that case, the school paid the person for the time worked and they left. I vaguely recall there was some misrepresentation by the employee or something not said, but the person did perform his duties for a time and did so reasonably well.

The school could probably have avoided paying, but it certainly wasn't an amount worth arguing about.

[PeaceBlondie]

I believe if she can't get visa extension and work permit, she can't teach. So she can't fulfill her contract one day. Does it matter whose fault it is? She is not a teacher now.

[BruceMangosteen]

Since most teachers start working without being fully legal, your question is interesting. So, did your friend actually 'work'. Did she actually teach? If so she may be entitled to wages. And, if so, for how long?

The context is future, renewal. Many on these various forums are all to quick to jump on the severance bandwagon, wherein the teacher would be in the same situation, no VISA and no WP from the school which didn't renew, them thinking all this money owed for wrongful dismissal etc.. My question is when they do renew, and then there is some "problem" as outlined above. It seemed easy to understand but I'll take the blame for not being clear enough. Thanks for your reply.

[BruceMangosteen]

I believe if she can't get visa extension and work permit, she can't teach. So she can't fulfill her contract one day. Does it matter whose fault it is? She is not a teacher now.

That isn't true in the real world as I'm sure you are aware. Teachers are often hired on a probation status with and without any sort of contract, visa and/or WP. In addition, the working without a WP while illegal as we all know, also puts a burdon on the employer I think? and subjects them to fines or loss of face with the M.o.Ed. or some big office/person? She won't take the personal risk in this specific instance, but still the fact she has a contract, signed properly and by the parties(school director), without it mentioning anything about these things and only that she teach, seems to put her in a position of at least asking for the 90days wages called for in writing since it would be the school telling her she "can't teach" here. My opinion only and why I'm asking for others.

[PeaceBlondie]

I don't know. But if she never works under the new contract, it's not valid for lack of performance, an essential part of a contract. I think (I only took two semesters of business law, in Texas) - but performance is essential I think.

[BruceMangosteen]

I don't know. But if she never works under the new contract, it's not valid for lack of performance, an essential part of a contract. I think (I only took two semesters of business law, in Texas) - but performance is essential I think.

There is no work to perform in March and April. They are holidays, no classes or assigned duties. The arguement it seems of her being "unable and unfit" to work wouldn't hold since she could actually leave the country should she be so inclined. The duties start in May. But you know this and I hope you have a nice afternoon. I think this will happen sooner than you folks imagine with the new hurdles.

[thunder30101]

Which is it ? First you ask about her getting paid off for the contract now you say it isnt all about severence pay, its about the future but then you admit she cant work on a tourist visa. I know what happened here she was working on a tourist visa without a work permit, foolish on her part, knowing there is no chance of getting the correct documents without a b-visa which would she would have to leave the country to get, alot of expenses involved to do this. So prob after a big pissing match with the school they said leave, no contract. Am I far from wrong here ? Just another story from a teacher who didnt do their own homework !

[BruceMangosteen]

Which is it ? First you ask about her getting paid off for the contract now you say it isnt all about severence pay, its about the future but then you admit she cant work on a tourist visa. I know what happened here she was working on a tourist visa without a work permit, foolish on her part, knowing there is no chance of getting the correct documents without a b-visa which would she would have to leave the country to get, alot of expenses involved to do this. So prob after a big pissing match with the school they said leave, no contract. Am I far from wrong here ? Just another story from a teacher who didnt do their own homework !

This is not a puzzle for you to solve. This isn't some game of one up, one up. This is real life and someones future is on the line. Please just find another topic to ridicule, we wish to have an intelligent conversation about a serious issue....

Contract signed and sealed, teacher renewing, school wanting to renew.

Some problem, irregardless of the cause as long as not fraud, with the extension and/or WP.

Is the contract term calling for 90 day notice valid or not.

Knowing the answer is better than being told "sorry" and being out of work and nearly out of time to remain legally.

Thank you for your consideration of our request you leave the validation of your perceptions out of this.

[otherstuff1957]

OK, so now we're talking about a renewal or extension of an existing job, not a new job. I do have to say that it's hard to give any advice without having the full facts to start with . I think that she really needs to consult a lawyer, though giving in a taking the Thai Cultural Course and the 4 ridiculous tests might actually be cheaper.

As others have pointed out, labor and contract laws override written contracts. In other words, contract clauses that are illegal are invalid and legal rights and obligations that are not spelled out in a specific contract still apply. If I understand the OP correctly, the employee in question will become unable to legally continue in the job because of new regulations and laws that she either cannot or will not comply with. If this happens (and remember that TIT, so who knows what will really happen two or three months from now!), one of two things will occur: 1) she will have to work illegally on on a tourist visa, either with the school's assistance or not, or 2) she will be given the sack. I really don't know if she would be entitled to compensation under these circumstances - again, she really needs to talk to a lawyer - but I suspect that this quote "just assume she refuses to take the Exams proving her knowledge or refuses to enroll in a culture course at her expense, and on that basis, the extension and WP denied" if it is the actual situation, which the OP seems unwilling to confirm, it will not lead to the Labor Dept. to have much sympathy with a compensation claim.

Edited January 10, 2010 by otherstuff1957

[Phatcharanan]

Some problem, irregardless of the cause as long as not fraud, with the extension and/or WP.

Is the contract term calling for 90 day notice valid or not.

Knowing the answer is better than being told "sorry" and being out of work and nearly out of time to remain legally.

Go ask a lawyer if you need a definitive answer.

[Ijustwannateach]

Is this question really about continued employment or about severance?

^Patcharanan has the right answer, especially if OP is not willing/able to make all details known. The details do matter, and I think other posters have pretty comprehensively given examples of specific situations, which would indeed supply the situations of nonrenewal 'based on any reason' requested by the OP. If OP is unwilling to provide more details or make it clearer what he is fishing for, I am tempted to close this thread.

As has been stated on threads here before, the contract does not obligate the government- and clauses of the contract which are illegal under provisions of law are not enforceable (which I would apply to the whole contract if the employee has not been legally employed). In the severance threads incorrectly (at least from Thaivisa) cited by OP, he claims that posters recommend those who never had WPs and visas seek severance; what most posters in those threads here have actually said is that while technically it is possible by labour law it would be foolish because the plaintiffs would also be admitting illegal employment (and so could be fined, deported, etc. even if they won the severance case). In the specific case that OP mentions in which an employee once had a WP and a visa, but now cannot get one- that is a legal tangle that probably would need a court ruling; however, once again without knowing the details, given that the recent tightening of requirements for getting paperwork based on a teaching job, and the apparent intent of these requirements to remove a number of persons from the labour pool of Thailand, I could see the government ruling on this in a rather unsympathetic way: i.e., if you lose a job as a result of becoming unqualified by legal definition, it's not the employer's fault in any way and therefore no severance is due.

[Scott]

Thanks IJWT for that well-focused response to what has been a rather muddled thread.

[ericthai]

Now is this clear enough.

Again, it isn't clear "enough" because the requirement that she have a Work Permit isn't in the contract. This is the question and discussion, not I repeat again, to understand why she was denied and make a judgment based on that. The contract says perform the duties of a teacher on such and such a date. The school isn't even open as also mentioned. To make it simple for your thought process, just assume she refuses to take the Exams proving her knowledge or refuses to enroll in a culture course at her expense, and on that basis, the extension and WP denied. The lack of these documents/certificates aren't anyones fault, she never agreed to provide/acquire them and the school never required them and has employed her in the past without them.

Again, we are trying to help you, but you are not providing complete info. So she worked for them in the past?

I dont understand what you are saying about at this time that school is out, is she working for the school now and suppose to get paid for this time that school is out and this is the money you are worried about? If she has been working for the school how long has she been working, has she had a work permit in the past? These are the things that you are leaving out which is hard to figure out what is going on.

As for the contract there are some things in contracts that are not spelled out but implied of which "preforming her duties", would mean that this is not just done physically but legally.

I really believe she will be out of luck, because if she does not have a work permit she is not legal to work that's it, just because schools get away with employing teachers and not getting them work permits does not mean that it's right, so you cant base your case on schools doing something the is illegal. As stated above if she can not get a work permit then she can not preform her duties legally. If they go to a court of law I'm sure this is what the out come will be. You cant go to court and fight a speeding ticket by saying everyone else was speeding so this ticket should be no good, wont work.

Lastly I suggest you speak to lawyer if you are not happy with what you are getting here. However be very careful as Im sure many lawyers will tell you that you can win just to get paid. My friend had a problem here. The lawyer said no problem they can win the case he paid the lawyer 500K and then the lawyer did nothing. You need to remember this is Thailand and things are not always clear and straight forward as in the US or UK.

Good luck!!!