Non-renewal Of Contracts

[Credo]

An associated school I know of has decided not to renew the contracts of an unusually large number of teachers.  Some of these teachers have been around over 5 years without any kind of a formal reprimand or any significant complaints about their teaching.  The reasons are probably because of a change in the upper levels of the Thai administration and the new commander-in-chief doesn't like them.  

Some of the newer teachers seem to be fine with this discharge, but for some who have been around for a while it is a major upset.  They have settled into the area etc.  

Is there anything they can do, legally?  (None of the positions they hold are being eliminated).  None are on probation or have any written/formal complaints.  No abuse of sick leave.  

[markg]

They are probably entitled to severance pay. They is a thread running about Thai labour law, though of course, it isnt very clear, which is why i say they are 'probably' entitled to severance pay.

As far as i'm aware, once the decision has been taken to not renew their contracts then thats about it - you're down the road and finished at that school. Accept it. However, they should start taking action now to make sure they get a settlement of salary.

[Credo]

I don't know that any of them want to fight to stay, but they want to get whatever they are entitled to. I heard that one lady did talk to the owner, and was told it was the way she dressed. She wore too much black. I don't know this for sure, but that's what I heard.

[PeaceBlondie]

Too much black is a Thai taboo. Only when somebody dies. Seriously. She should always wear flaming pink, and fuscia shoes.

[Credo]

That's interesting about the colors. Another teacher who was discharged always wore black. Black shirt, black pants, sometimes even a black tie. His problem was that he wasn't a very good teacher, I think. Maybe black didn't help.

The lady in question is a different story. I don't every recall her wearing black at all. I'm not quite as close to this situation as others and I'll check, but I think with her this was just made up.

I wonder if this is covered in the Thai Labour Law? I don't think it was covered in the Thai Culture Course.

[Credo]

At the end of the contract, none of the teachers have been offered severance pay. The school says it doesn't have to pay them beyond the ending date. Is that correct?

[Ijustwannateach]

I think you will find that if the Labour department is consulted, or a good lawyer, that the school will find that they do in fact owe severance to many of the teachers unless the *positions themselves* have been eliminated (in other words, the school no longer will employ ANYONE to teach Year 9 Maths, for instance). The logic behind this sort of labour law is that if employers are allowed to offer positions only on the basis of temporary contracts, perpetually, that no one would ever have a permanent contract with benefits. So after a certain number of years- not many, I would guess- the employee becomes a permanent member of staff from the point of view of labour law by default, no matter what the contract says (the labour law supercedes contractual agreements).

Most teachers that I have known to challenge this kind of real or pretended ignorance on the part of the school have found that they did indeed receive severance- it's roughly one month's pay at termination rate for every year of employment, up to about 10-12 months worth. Even a letter from a lawyer can clear heads wonderfully with little need for further or expensive action- and if it affects so many teachers, I am sure that the group can pass the hat around.

Stick it to them! If they have some scheme of replacing you guys en masse with lower-paid re-hires, they deserve to be forced to pay as much as they are required to by law. In fact, if you could demonstrate they were intentionally trying to cheat you, they could be forced to respond to criminal charges, I would suppose.

[Credo]

Thanks so much for that. I think some people will be pleasantly surprised.

[mopenyang]

I think you will find that if the Labour department is consulted, or a good lawyer, that the school will find that they do in fact owe severance to many of the teachers unless the *positions themselves* have been eliminated (in other words, the school no longer will employ ANYONE to teach Year 9 Maths, for instance). The logic behind this sort of labour law is that if employers are allowed to offer positions only on the basis of temporary contracts, perpetually, that no one would ever have a permanent contract with benefits. So after a certain number of years- not many, I would guess- the employee becomes a permanent member of staff from the point of view of labour law by default, no matter what the contract says (the labour law supercedes contractual agreements).

Most teachers that I have known to challenge this kind of real or pretended ignorance on the part of the school have found that they did indeed receive severance- it's roughly one month's pay at termination rate for every year of employment, up to about 10-12 months worth. Even a letter from a lawyer can clear heads wonderfully with little need for further or expensive action- and if it affects so many teachers, I am sure that the group can pass the hat around.

Stick it to them! If they have some scheme of replacing you guys en masse with lower-paid re-hires, they deserve to be forced to pay as much as they are required to by law. In fact, if you could demonstrate they were intentionally trying to cheat you, they could be forced to respond to criminal charges, I would suppose.

You have mentioned several times the elimination of a position automatically negating the requirement of an employer in Thailand to pay severance. Do you have a legal citation for believing this? It doesn't make sense to me. If someone has worked the required time to qualify for severance pay under Thai Labour Law, why would elimination of their position automatically free the employer from having to pay severance if the entire idea behind severance pay is to assist someone who has lost his or her job through no fault of their own?

[Ijustwannateach]

Actually I don't, and I might be wrong- it's just a common convention and I've heard it here before. Still, it would be worth checking out with a lawyer. Anyone else have a link?

[mopenyang]

Actually I don't, and I might be wrong- it's just a common convention and I've heard it here before. Still, it would be worth checking out with a lawyer. Anyone else have a link?

I don't have a link that says no severance is due an employee when their position is eliminated, but here is a link that provides some useful information regarding requirement for severance as well as the fact that no personal income tax has to be paid on severance payments less than 300,000 baht:

http://www.pacificbridge.com/publication.asp?id=5

[CWMcMurray]

From my understnding the elimination of a job does not automatically mean that no severance is owed.

This clause comes from the test of whether or not your job can be considered a "temporary position" i.e. if the job position still exists after you are let go, then it can not be classed as a "temporary position".

This being said, I have never heard that the oposite is held to be true... i.e. if the job no longer exists then the job can be considered as "temporary".

[Credo]

Thanks. That is helpful. In one case the person being replaced will be replaced by a Thai person, but whether that will happen or it is just a ploy is something I don't know for sure. The person, I believe, would be qualified to teach in another subject.

[mizzi39]

The title of this OP is non- renewal of contracts. What can be done? Very little. The school is only obligated to honor the contract until the date said contract expires. Maybe a severance package might be warranted if a school all of a sudden lets go of a teacher mid contract for some unjust reason, but the burden would be on the teacher to prove that he/she was let go unjustly. Bottom line is that as long as the school honors the contract, their obligation to you ends there.

I was picked up by my school for another year, (3rd year) but i am also well aware that my job security only extends for one full contact year and no more, so unless you are a government employee, or working for a company that fired you unjustly, the recourse you have is virtually non existent, and since 99.9 percent of foreigners working in the LOS 99 percent of labor laws do not apply.

A school has every right to replace a teacher even if that teacher may be less experienced than the one being replaced, because the school may feel that the teacher who is not having their contract resigned is no longer a "good fit". There is no such thing as equal opportunity employment here.

Edited March 4, 2010 by mizzi39

[Ijustwannateach]

I think the 'temporary position' clause is what I am talking about; i.e., if the POSITION (not the employee) is temporary no severance is due. If I want to hire a computer programmer for 2 years to do a job, I am not obligated to him after that- that would be a temporary POSITION. A schoolteacher is not usually a temporary POSITION unless the school is cutting back severely on classes, enrollments, etc.- the position of '8th grade math teacher' will probably still be there as long as there is an 8th grade.

You can be on a 'temporary contract,' but as I have maintained before (correctly, as far as I am aware from anecdotal cases at my own school and elsewhere) if you have been at a position more than a couple of years, Labour Law (which trumps your contract) says you are deemed to be a permanent employee- otherwise, as I have already said, there would be no incentive for ANY permanent employees to exist (foreign or otherwise) and for companies to be obligated to them for benefits- they would simply rehire everyone every year.

Contary to what you have said, Mizzi, in most cases I know where the foreigner was fully legally employed (which is itself sometimes difficult) and thus had no issues of his own to worry about in going to seek legal help (such as not having had a work permit), legal recourse has usually worked for foreigners, and insisting on legal obligations has always usually led to the right results with employers (once they understood what those obligations were).

[Crossy]

I can confirm that 'temporary' contracts don't work if the company is trying to avoid paying severance.

A previous employer (farang run company, not teaching) had several Thais on one-year contracts that were renewed each year, the idea being to avoid paying the severance when the job finally ended.

Got a bit of a shock, when after three years they didn't renew and got slapped with the severance requirement. Incidentally, the jobs themselves also vanished at the end of the contract, so that too is not a way out.

It is definitely worth getting a lawyer versed in Thai employment law on-board

[Credo]

Thanks a lot for the information given so far. There was one teacher (I think) who was dismissed for cause. I believe he was formally reprimanded in writing prior to his dismissal. I don't know what it was he did, but it was reasonably serious and could have actually resulted in legal action against him. It wasn't hitting a kid, but it was something like allowing cheating, or giving answers or changing grades; something like that.

The other teachers who weren't renewed were really quite surprised because there had been no questions about their performance ever raised. Including some who had been employed for a fairly long time. I don't think any of them are fighting for their jobs to be re-instated, just to get what's owed to them.

[Ijustwannateach]

^They're making the right decision not to try to stay at a school that would do something like that, ever.

The guy that you say is being dismissed for cause- in that case he will not be due severance assuming they've dotted all the documentation i's- given the oral warning, the written warning (with specific suggestions for improvement)- and then they can demonstrate that he HASN'T improved- else he could fight it, too.

Otherwise, as long as it's past the minimum time for severance (less even than 1 year, I think) it is due to them.

[paully]

You have mentioned several times the elimination of a position automatically negating the requirement of an employer in Thailand to pay severance. Do you have a legal citation for believing this? It doesn't make sense to me. If someone has worked the required time to qualify for severance pay under Thai Labour Law, why would elimination of their position automatically free the employer from having to pay severance if the entire idea behind severance pay is to assist someone who has lost his or her job through no fault of their own?

It's to do with redundancy law. Redundancy is where the employer has no need any longer for that employee's job requirement.

To quote from quite a good guide to Thai employment law (link below):

Redundancy

Redundancy occurs where the employer has ceased, or intends to cease, to carry out

the business for the purpose of which the employee was employed by him/her or in the

place where the employee was so employed, where the requirements of that business for

employees to carry out a particular kind of work or to carry out such work in the place

where the employee was so employed have ceased or diminished, or are expected to cease

or diminish.

If an employee has been dismissed or his contract ended and there is a continuing job requirement, this is NOT a redundancy but an unfair dismissal, and the employee is entitled to severance payment.

http://www.mayerbrown.com/publications/art...6&nid=11252

[Credo]

Thanks for the link. It is most helpful.

[paully]

^ Cheers - it's a couple of years old, but clearly set out.

[mopenyang]

You have mentioned several times the elimination of a position automatically negating the requirement of an employer in Thailand to pay severance. Do you have a legal citation for believing this? It doesn't make sense to me. If someone has worked the required time to qualify for severance pay under Thai Labour Law, why would elimination of their position automatically free the employer from having to pay severance if the entire idea behind severance pay is to assist someone who has lost his or her job through no fault of their own?

It's to do with redundancy law. Redundancy is where the employer has no need any longer for that employee's job requirement.

To quote from quite a good guide to Thai employment law (link below):

Redundancy

Redundancy occurs where the employer has ceased, or intends to cease, to carry out

the business for the purpose of which the employee was employed by him/her or in the

place where the employee was so employed, where the requirements of that business for

employees to carry out a particular kind of work or to carry out such work in the place

where the employee was so employed have ceased or diminished, or are expected to cease

or diminish.

If an employee has been dismissed or his contract ended and there is a continuing job requirement, this is NOT a redundancy but an unfair dismissal, and the employee is entitled to severance payment.

http://www.mayerbrown.com/publications/art...6&nid=11252

Ah, it may or may not have something to do with redundancy but I am more curious as to where you find any mention of no severance being required in such cases. You seem to be implying such is the case. Yet, even the authority you cited above does not say this in the link you provided.

[beano2274]

If they signed yearly contracts then they will only receive severance for the contract in use, thus severance for one year. I had the same problem at a University here in Bangkok.

[mopenyang]

If they signed yearly contracts then they will only receive severance for the contract in use, thus severance for one year. I had the same problem at a University here in Bangkok.

That does not appear to be the way the Thai Labour law reads. Were you represented by a Thai Labour lawyer in your dealings with the Ministry of Labour and Labour Court?

[Scott]

Beano2274, out of curiosity, was that by mutual agreement, or was that specified by the labor court? How long had you worked at the University?

[beano2274]

worked at the Uni for over one year, my documentation was sent to the Ministry of Finance to approve my severance pay, which was equivalent to one months salary.

[mopenyang]

worked at the Uni for over one year, my documentation was sent to the Ministry of Finance to approve my severance pay, which was equivalent to one months salary.

Are you saying you were not represented by a Labour lawyer? Was the documentation sent by you, your employer or another party?

My experience with such a case has been very different than yours and I have a feeling it was due in no small part to having counsel handle my case with the Labour people.

[beano2274]

worked at the Uni for over one year, my documentation was sent to the Ministry of Finance to approve my severance pay, which was equivalent to one months salary.

Are you saying you were not represented by a Labour lawyer? Was the documentation sent by you, your employer or another party?

My experience with such a case has been very different than yours and I have a feeling it was due in no small part to having counsel handle my case with the Labour people.

I read the contract thoroughly and in the contract it stated that the contract was a one year contract, the previous ones did not matter, and that I would receive severance of one months salary for the year I had worked.

The University was changing at the time, and all financial matters were dealt with directly by the MoF, they had all the documentation at the time.

At the end of the day I was happy to have left and got something out of it all.

[mopenyang]

worked at the Uni for over one year, my documentation was sent to the Ministry of Finance to approve my severance pay, which was equivalent to one months salary.

Are you saying you were not represented by a Labour lawyer? Was the documentation sent by you, your employer or another party?

My experience with such a case has been very different than yours and I have a feeling it was due in no small part to having counsel handle my case with the Labour people.

I read the contract thoroughly and in the contract it stated that the contract was a one year contract, the previous ones did not matter, and that I would receive severance of one months salary for the year I had worked.

The University was changing at the time, and all financial matters were dealt with directly by the MoF, they had all the documentation at the time.

At the end of the day I was happy to have left and got something out of it all.

Okay. Understood. Thanks.

At the same time, I think a good lawyer could have torn that part of the contract into shreds as it appears to be requiring you to sign away certain rights and benefits possibly due you under the law.

[beano2274]

Each contract had a validity of one year, it gave a from and to date, therefore previous contracts cannot be taken into consideration, as it was a new contract, not a renewal of an existing one.

I was only contracted to teach for the length of the contract, what happened before and after were covered in different contracts.

The money was not an issue, just getting out of there was a god save for me.