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[jdinasia]

I hope it goes well for you! Labor court is usually VERY pro-labor. I hope in your case that it sees you as being treated wrongly by the company you worked for!

[saakura]

You have received some excellent advise here from several persons, especially from Soutpeel. All for free. Now do your bit and keep us posted on how this goes. All the best.

[Soutpeel]

No settlement reached and it will go to trial.

1. Commission is the big point - in Thailand is someone working on commission an "employee" or an independent contractor?

2.In most countries factors like these are considered key criteria: http://smallbusiness...z/form1-21.html

I match all the criteria for an employee except I was paid on commission

How about here?

IMHO...consider an employee/saleman for a car dealership, will be paid a commsion on every car he sells, but he is still an employee.

In terms of Thailand under labour laws, as a Farang you need a WP that is sponsered by the Thai company you are working for...therefore you cannot be an "independent contractor"

If memory serves, you where promised a WP by the company you are currently in dispute with, therefore it appears in your case the intent was to take you on as an employee.

The only other permutation of this where it may not apply and be seen as an independent contractor is say you own a Thai limited company under which your WP is issued, and your Thai company is sub-contracted by the company you are currently in dispute with.....ie this would be a hire of service contract....company A contracts company B to provide those services

[jdinasia]

Southpeel --- in your final example it would be a civil litigation case and not labor (as I see it).

[kaosoi]

As per the Thai Civil & Commercial Code

1. "Hire of Work" is being a contractor (and so it is a civil case)

2. "Hire of Service" is being an employee (labor case)

The key thing for the judge to get his/her head round, perhaps, is commission. You should have a WP but labour court will still help you if you didn't have one - you just need to prove you were an employee and did the work.

My boss's lawyer said "I was free to come into work any time and set my own schedule blah blah and that I was my own boss". None of this is not true. The staff know it, the office manager who was sitting there knows it but was too terrified to speak. The boss never showed up but sent a team of lawyers.

Key things are documentary evidence and proof that I was Hire of Service. For example if we had used a clock-in system in the office it would be good evidence but we did not use that....wonder how else I can prove the times I went into the office? it is the concept of pure commission that seems to be the biggest challenge - again, solid easy to judge things...you get paid a salary at the end of every month that is the same - you are an employee.

On commission though your salary can be bigger and smaller so ...you may not even get anything some months.

Generally though a contractor works for himself and for many different clients (I didnt), invoices clients himself (i didnt), pays his own taxes (nope) is not supposed to be represented as a company employee in materials and at events (I was), is not directed how and where to do his work (I was) etc. The boss is claiming all this and is hanging it on the fact I was1. paid on commission and that 2. what version of a contract that I have does not say I HAD to be there at 8.30 to 5.30 pm (but I did) or that I couldn't work for another company.

It hinges on what is provable on paper rather than what is the case. I have evidence for rebutting a lot of the above but again it is the commission concept that is the big point perhaps, that i worked on a job by job basis rather than doing the "regular work"...however the regular work is exactly what I did.

Edited March 15, 2011 by kaosoi

[Soutpeel]

Southpeel --- in your final example it would be a civil litigation case and not labor (as I see it).

Correct....in the case of a "hire of service" contract.....this would be civil case as the this would not be to do with unpaid salary, but an unpaid invoice

[Soutpeel]

As per the Thai Civil & Commercial Code

My boss's lawyer said "I was free to come into work any time and set my own schedule blah blah and that I was my own boss". None of this is not true. The staff know it, the office manager who was sitting there knows it but was too terrified to speak. The boss never showed up but sent a team of lawyers.

Key things are documentary evidence and proof that I was Hire of Service. For example if we had used a clock-in system in the office it would be good evidence but we did not use that....wonder how else I can prove the times I went into the office? it is the concept of pure commission that seems to be the biggest challenge - again, solid easy to judge things...you get paid a salary at the end of every month that is the same - you are an employee.

On commission though your salary can be bigger and smaller so ...you may not even get anything some months.

Generally though a contractor works for himself and for many different clients (I didnt), invoices clients himself (i didnt), pays his own taxes (nope) is not supposed to be represented as a company employee in materials and at events (I was), is not directed how and where to do his work (I was) etc. The boss is claiming all this and is hanging it on the fact I was1. paid on commission and that 2. what version of a contract that I have does not say I HAD to be there at 8.30 to 5.30 pm (but I did) or that I couldn't work for another company.

It hinges on what is provable on paper rather than what is the case. I have evidence for rebutting a lot of the above but again it is the commission concept that is the big point perhaps, that i worked on a job by job basis rather than doing the "regular work"...however the regular work is exactly what I did.

I would suggest your former employer is on shakey ground, if this is the best a "team" of lawyers can come up with, then this is looking more favourable for you

I understand you have an email which lays out your T&C's ?

As pointed out in an earlier post...in Thailand as a Farang you cannot be an "independent" contractor in Thailand due to WP issues ( i know your were promised one but never received it)

In your T&C's was tax deduction ever talked about ?...If so, another point in your favour if the company had indicated how your tax was set up, another point which could show the intention that your were considered an "employee".

As regards your working hours....IMHO this is completely irrelevevant, as there are plenty of employee's who work Flexi-time and set their our hours and schedules of how they tackle their work, this is not a measure of whether someone is an employee or not.