luthien Posted August 10, 2011 Share Posted August 10, 2011 My work contract states that I need to pay a million baht if I breach it. My current visa is still tourist. I am slated to apply for the non-immigrant soon. So I have yet to have a work permit. They say it is because I am still on probation. I already want to resign though. Can my employer ask me for the 1 million baht stated in my contract even if they havent even gotten me my work permit? Thanks in advance for the help. Link to comment Share on other sites More sharing options...
Mario2008 Posted August 10, 2011 Share Posted August 10, 2011 You are by law not allowed to work without a work permit, on probation or not. They cannot force you to brake the law because of your contract. Link to comment Share on other sites More sharing options...
bino Posted August 10, 2011 Share Posted August 10, 2011 The probation door swings both ways- they can terminate you or you can leave at any time in the first 90 days. Link to comment Share on other sites More sharing options...
beano2274 Posted August 10, 2011 Share Posted August 10, 2011 they can be done for employing you illegally. Just walk away and forget the whole episode. Link to comment Share on other sites More sharing options...
luthien Posted August 10, 2011 Author Share Posted August 10, 2011 Thank you for your responses. I was concerned that they might pursue the idea of me paying a million baht. Link to comment Share on other sites More sharing options...
bkkjames Posted August 10, 2011 Share Posted August 10, 2011 I will take half of it and promise not to tell anybody Link to comment Share on other sites More sharing options...
whatchamacallit Posted August 10, 2011 Share Posted August 10, 2011 I don't get it... why would you sign any employment contract that would penalized you 1 Million baht if you break it anyway?? Get out while you can!!!! Link to comment Share on other sites More sharing options...
luthien Posted August 10, 2011 Author Share Posted August 10, 2011 I am a newbie to Thailand visas, etc. I admit it was a huge fault on my part for not being too strict with what went on in my contract I hope I can get out, unscratched. Link to comment Share on other sites More sharing options...
TommyDee Posted August 10, 2011 Share Posted August 10, 2011 are you by any chance selling shares? Link to comment Share on other sites More sharing options...
luthien Posted August 10, 2011 Author Share Posted August 10, 2011 TommyDee, I don't understand the question. Link to comment Share on other sites More sharing options...
mightyharriss Posted August 10, 2011 Share Posted August 10, 2011 Simple question from Tommydee really... Your reluctance to answer would suggest a big "yes" Link to comment Share on other sites More sharing options...
jdinasia Posted August 10, 2011 Share Posted August 10, 2011 (edited) TommyDee, I don't understand the question. What industry is your company in? He was asking if you are working in a boiler room? Edited August 10, 2011 by jdinasia Link to comment Share on other sites More sharing options...
Soutpeel Posted August 11, 2011 Share Posted August 11, 2011 Thank you for your responses. I was concerned that they might pursue the idea of me paying a million baht. Tell me you didnt sign a contract saying that.... .....oh well. From a legal stand point IMHO (and you would need to take proper legal advice on this one) this would be an unfair condition of contract against an individual in terms of labour legislations and may in fact be invalid. It has been put in the contract as a scare tactic in an attempt to stop you leaving. If you resigned, the company concerned would have to lay a civil suit and prove that they had incurred THB 1.0 mill "lost income" by your leaving, they cant get you arrested or put in jail etc etc...even if there was a foundation for a claim it would be a civil claim...I really cant see how this clause could be enforced. If the company has paid for you to relocate to Thailand/paid for air tickets/accomdation etc and you resigned within a pre-defined then the company is would be well within their rights to sue and try and get the money they spent back from you..... It also appears you are working on "probation" without a WP....you should have a WP. If the company has stated you are on probation for 90 days, probation works both ways....they can decide not keep you on, or you can decide not to stay on, therefore you could argue if you resign within the probationary period, the THB 1.0mil "clause" would be invalid anyway, if was valid then "logic" would dictate, if they decided not to keep you on, they would have to pay you THB 1.0mil.... Link to comment Share on other sites More sharing options...
SolarOhm Posted August 11, 2011 Share Posted August 11, 2011 You are by law not allowed to work without a work permit, on probation or not. They cannot force you to brake the law because of your contract. 1. Under the law you can not enforce an illegal contract. You are engaged illegally, because you do not yet have a work permit. So the 1 million baht is safe. Except you owe me half for this advice 2. If this matter went to Court you would both be done for you working without a permit. Do not pass go, do not collect 200, go directly to jail, pay a fine, and leave the country. (that advice will cost you another half million baht in fees) 3. Any further questions? Link to comment Share on other sites More sharing options...
Soutpeel Posted August 11, 2011 Share Posted August 11, 2011 2. If this matter went to Court you would both be done for you working without a permit. Do not pass go, do not collect 200, go directly to jail, pay a fine, and leave the country. (that advice will cost you another half million baht in fees) There are cases of employees suing their companies for severance via the DOL and not having WP's and winning their cases and the employee concerned was not "done" for anything/fined/jailed or deported....so what you are saying is not a given. Link to comment Share on other sites More sharing options...
Soutpeel Posted August 11, 2011 Share Posted August 11, 2011 (edited) 1. Under the law you can not enforce an illegal contract. You are engaged illegally, because you do not yet have a work permit. In what way is the contract illegal ?.....A contract is an agreement between two parties thats all, there may be certain clauses which are "illegal" or unenforcable but this would not invalidate the whole contract per se. And the legality/enforceability of these clauses in the contract would need to be decided by a court of law. Edited August 11, 2011 by Soutpeel Link to comment Share on other sites More sharing options...
SolarOhm Posted August 11, 2011 Share Posted August 11, 2011 1. Under the law you can not enforce an illegal contract. You are engaged illegally, because you do not yet have a work permit. In what way is the contract illegal ?.....A contract is an agreement between two parties thats all, there may be certain clauses which are "illegal" or unenforcable but this would not invalidate the whole contract per se. And the legality/enforceability of these clauses in the contract would need to be decided by a court of law. You were engaged under the contract and worked illegally without a permit. That makes the contract illegal - in terms of its Performance (not the writing of it) The other party was aware you did not have a work permit - and that it is required before you can be employed. The contract was the basis on which you were employed illegally. Working without a work permit makes the contract invalid and so it becomes unenforceable. That is why you do not have to pay for breach of contract. If you had waited until yuo had a work permit before you work - i.e. actually were employed physcially it would have resulted in th econtract being valid - unless it were held to be harsh and unconscionable - as it seems you did not have legal advice (from a law firm) before signing the contract. In simple terms - that means even a valid contract can be overturned by the Courts if it is deemed to be unfair to a weaker party who clearly was taken for a ride. Regarding the situation you are in - The employer is an accomplice in aiding and abetting your illegal working, Thus they too are guilty of an offence. (looks like you owe me another half million in fees ) If the employer wants to make an issue of the deal they will go for a row and you also. - so you need decide whether to:: a) just walk away from the whole show ask them to pay YOU!! (in which case we split the loot 50/50) c) you pay a Bangkok law firm to protect your ass and have a go at the employer for causing you to break the law. (I shall be meeting with a few law firms in Bangkok next week and can introduce you to them should you want to go down track 3 - I personally do not do litigation work in Bangkok, as I prefer to help people make money rather than spend their life burning it) All the best with your headache. Take care Link to comment Share on other sites More sharing options...
SolarOhm Posted August 11, 2011 Share Posted August 11, 2011 May I ask what type of work were you employed to do? Link to comment Share on other sites More sharing options...
Mario2008 Posted August 11, 2011 Share Posted August 11, 2011 The contract is legal, but working for them can't be "enforced" without a work permit as that would be against the law. There is a difference, which Southpeel is pointing out. Link to comment Share on other sites More sharing options...
Soutpeel Posted August 11, 2011 Share Posted August 11, 2011 1. Under the law you can not enforce an illegal contract. You are engaged illegally, because you do not yet have a work permit. In what way is the contract illegal ?.....A contract is an agreement between two parties thats all, there may be certain clauses which are "illegal" or unenforcable but this would not invalidate the whole contract per se. And the legality/enforceability of these clauses in the contract would need to be decided by a court of law. You were engaged under the contract and worked illegally without a permit. That makes the contract illegal - in terms of its Performance (not the writing of it) The other party was aware you did not have a work permit - and that it is required before you can be employed. The contract was the basis on which you were employed illegally. Working without a work permit makes the contract invalid and so it becomes unenforceable. That is why you do not have to pay for breach of contract. If you had waited until yuo had a work permit before you work - i.e. actually were employed physcially it would have resulted in th econtract being valid - unless it were held to be harsh and unconscionable - as it seems you did not have legal advice (from a law firm) before signing the contract. In simple terms - that means even a valid contract can be overturned by the Courts if it is deemed to be unfair to a weaker party who clearly was taken for a ride. Regarding the situation you are in - The employer is an accomplice in aiding and abetting your illegal working, Thus they too are guilty of an offence. (looks like you owe me another half million in fees ) If the employer wants to make an issue of the deal they will go for a row and you also. - so you need decide whether to:: a) just walk away from the whole show ask them to pay YOU!! (in which case we split the loot 50/50) c) you pay a Bangkok law firm to protect your ass and have a go at the employer for causing you to break the law. (I shall be meeting with a few law firms in Bangkok next week and can introduce you to them should you want to go down track 3 - I personally do not do litigation work in Bangkok, as I prefer to help people make money rather than spend their life burning it) All the best with your headache. Take care If all this is true then explain how the DOL has taken employers to court for severance pay on behalf of an employee who do not have a WP, and they have won the case ? A standard employment contract has to comply with the basic condtions of employment set out in the labour act. Based on your logic...if you are working without a WP, you contract is invalid, therefore the standard T&C's are invalid (ie the conditions laid Thai labour act) therefore the DOL/employee has no grounds to sue for severance pay if the postion is terminated, yet the DOL have taken cases to court like this and won compensation for the employee..!! Which suggest to me that working without a WP does not invalidate an employment contract, as if this the case, then the employee concerned would be not awarded severance if applicable. Link to comment Share on other sites More sharing options...
SolarOhm Posted August 11, 2011 Share Posted August 11, 2011 Irrespective of whether you have a work permit or do not - if you are employed and actually work for someone the obligation of the employer to pay severance is set by the Statutes and not by the contract of employment. DOL have been successful in having Courts force employers who have rorted the system simply through enforcing the labour laws. In many instances Courts have awarded severance pay and even salary payments to people who worked solely on commission. The employment contracts were held not to be valid - and were an attempt for employers to get around the laws of LOS. People who take advantage of the ignorance of Thai and Foreign workers can not obtain benefit simply because the parties signed a contract. You might note: as far as I have seen none of the agency/ contractor/ commission only agreements used by foreigners in Thailand are legitimate employment contracts. Such firms are just leaving themselves wide open to prosecution by DOL and for wage and salary claims by the purported employees. Link to comment Share on other sites More sharing options...
SolarOhm Posted August 11, 2011 Share Posted August 11, 2011 (edited) If you are an employer and concerned with possibly breaching the labour laws you need to engage people who have established their own Thai company. In which case their Thai company would be the employer and not yourself, unless you are the only business contracting with their Thai company. Your company needs to provide less than 80% of their total revenue or you could simply be deemed to be their employer, despite contracting through their company. Obviously there are simple ways to make this happen correctly - but it involves careful planning plus additional operating costs. It is also prudent to bring that figure down well below the 80% level. Edited August 11, 2011 by SolarOhm Link to comment Share on other sites More sharing options...
saroq Posted August 14, 2011 Share Posted August 14, 2011 Since you are working illegally they'd have a hard time holding you to a contract, but since you were naive enough to signed a 1 million baht penalty clause you'd better check out exactly what type of contract you did sign. Working without the correct visa could come to bite you in the arse as much as it could be a problem for your employer. Any legitimate outfit would never have employed you this way so your decision to leave them is probably a smart one. Maybe you should just get your passport, change your place or residence and not go to work on Monday, Link to comment Share on other sites More sharing options...
luthien Posted August 14, 2011 Author Share Posted August 14, 2011 Thank you for your thoughts on this matter! I am planning to talk and to resign. If they bring up the money, I will just make a run for it then. No, I don't sell stocks. I am however not inclined to give information on the company since it will likely be to my disadvantage if I do. So, thank you again, thaivisa posters! Link to comment Share on other sites More sharing options...
Master Chief Posted August 14, 2011 Share Posted August 14, 2011 Thank you for your thoughts on this matter! I am planning to talk and to resign. If they bring up the money, I will just make a run for it then. No, I don't sell stocks. I am however not inclined to give information on the company since it will likely be to my disadvantage if I do. So, thank you again, thaivisa posters! Thank you your honest posting here, and your very very very honest answers! The forum members whom answered your questions are pleased to help you with your issues, they answered all the questions correctly and by the Thai written laws! At no costs at all! Totally for free! No money transferred at all! With minimal information given in your case folder, they saved you a million,,, My personal feedback after reading this tread, is for you to have all the best of luck in expat works and that it will bring you great knowledge! Master Chief Link to comment Share on other sites More sharing options...
luthien Posted August 16, 2011 Author Share Posted August 16, 2011 The "money" was brought up. Guess I know when I'd be running then. Thank you again for all your advice! Link to comment Share on other sites More sharing options...
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