Constructive Dismissal

[Khunkru]

Hi,

I’ve read a few posts about this topic and I think we have a good case. I have found this online 'Section 49 of the Act Establishing Labour Courts and Labour Procedure B.E. 2522 (A.D.1979)' which pretty much covers it. I'd be interested to know if anyone can help me cite similar sections, paragraphs and so forth for the following issues.

We came back to work at a government school on May the 1st. Basically we have been denied a meeting since we came back as it’s always being cancelled. There are various changes we would like to discuss but we just don’t seem to be getting anywhere.

We have asked numerous times for a copy of our contracts and work permits. We are constantly being fobbed of. Too busy, in process etc. Some of the new teachers are still waiting for their paperwork so they can obtain a Non Imm B Visa. Obviously this is illegal but can anybody cite which sections of the labor act they are in breach of? Is it true the labor law applies to people working illegally?

This is all coming from the assistant director who in the absence of the director has made some major policy changes. Some of these are silly ideas such as we should teach scouts, club and various other things we don’t have curriculums for.

Also the director verbally agreed at the end of the last term that we would retain a 2000 Baht housing allowance. (It isn’t part of the contract, it's just paid into our banks and we sign a separate piece of paper.) We didn't get this on the first of June, and we were told that we had to submit an outline of what we would be teaching this term. Some of us said no because this came from the assistant director and it’s not part of any bonus scheme.

A few of the new teachers did it and you can understand why, they’re scared of losing their jobs. There is a bonus scheme depending on how well we teach, but this was never part of it. Most of the new teachers signed for 28k per month, plus the 2000 Baht. One signed for 33k per month, but only received 31k until she submitted this outline. Again this must be illegal but does anyone know which part of the labor act it comes under?

Then on Wednesday of this week one of the teachers was fired and told she had to leave at the end of the month. (The director didn’t sign it.) There was no verbal, written warning, 3 strikes and you’re out that should have been given. There was an appraisal of sorts, but it was pure fiction. She has lesson plans, evidence of students’reports but the main reason was that she supposedly didn’t sign the contract.

The problem for them is she has had her Non Imm B Visa extended for a year. You can’t get this without a copy of the contract in Thai and English. Also I’ve been informed of a ‘verbal agreement’ that exists. For example if you want to fire someone, you have to give them a warning in front of witnesses. Then just to make the situation even more surreal she was handed her new blue insurance government card on Friday! How can she not be employed by them?

We finally have a meeting scheduled for Monday and believe the director is unaware of most of this. Hopefully we can work this out, but we can't work with the new assistant director. Assuming they are removed we'll back down when we get our contracts, work permits and housing allowance and some assistance with the more obscure subjects. I think I'm aware of how severance pay works, years of service, arguments that one year contracts are just a way of trying to weasel out of paying it. A couple of teachers have been there years, so they should do quite well. I was wondering about the new teachers, will they get anything? I know they won't get severance pay, but they have been screwed over for their housing allowance and lack of work permits and contracts. If nothing happens on Monday I think most of us will walk out as it's unbearable, so I'm guessing you do it as a class action?

Any help would be greatly appreciated, thanks.

[Scott]

Khunkru: A lot of questions! I'll give you my take on a few of these and hopefully others will join in with their experiences/information.

First, the Labor laws apply to everyone, whether you are a legal or not. Second, it's always a good idea to check with the MOL or a legal expert if you have questions.

People working for a gov't school are eligible for severance pay, provided they do not voluntarily resign. I believe there are some exceptions for criminal activity, just cause, etc..

If you are working, you have a contract--whether it is written or not. If you are attending work each day and teaching classes you are employed and the relationship is a contractual one, whether written or not. If the school is paying you, then that is certainly an acknowledgement of a contractual relationship.

The issue of housing is more difficult. The school will likely not have to pay your housing unless it is written somewhere.

I don't know the sections of the law.

[thunder30101]

Its always good to see someone here stand up for their legal rights when getting screwed at work, but lets be real, thailand has laws but they mean nothing especially when relating to falangs. I have been in your position before and found it is easier just to move on rather than fight a losing battle, yes it hurt financially but in the end I was much happier than staying. YOU WILL NOT WIN when potential loss of face by admin is involved. Even if you do get some of what you feel is right you will be blacklisted, treated badly and eventually the letter with justification for your termination will be dropped on your desk. I have seen this same thing happening to many people (no visa, broken promises,hiring non-native speakers, etc.) more and more the last couple of years. I think the main reason is the higher cost of living is hurting the thais causing them to cut education costs, not just english programs, but everything they can skim a baht out of. You really have to think and ask yourself, in the end is it really worth it for a job you can get anywhere else for the same money ?

[sirchai]

We didn't get this on the first of June, and we were told that we had to submit an outline of what we would be teaching this term. Some of us said no because this came from the assistant director and it’s not part of any bonus scheme.

Guess it's at all Thai schools the same procedure. The assistant director is your boss, if the director isn't there, for whatever reason.

All at our school had to produce a curriculum outline, which isn't a lot of work, just that they get some ideas what you're planning to do.

This could also come from your Thai head teacher and you'd have to follow that as well.

Do you really believe that the director is completely unaware of the situation?

And if so, he wouldn't change his assistant's decisions.

Your statement that you guys can't work with the assistant makes your situation very difficult.

He'll work there until retirement, you won't.....

Edited June 24, 2012 by sirchai

[Khunkru]

Thanks for the replies. Maybe this might be better off in legal? I have no idea how to get specific information regarding the law.

Apparently the director isn't aware of all these changes. The Thai Head of English told me this. (Not a happy camper either.) The director has been in about twice this term. I appreciate the face factor, but it really is a matter of principal now. We'll see what happens in the meeting tomorrow.

I think they will sack everyone who stands up eventually, so if we argue we are being forced to resign does that constitute constructive dismissal? Does that exempt us from severance pay?

[phuturatica]

Sounds like a bit of a mess and I wish you all the best but usually in cases like this, you won't win. It might just be best to move on and get a new job pronto. There are plenty of jobs out there.

[Khunkru]

I think the teacher who was sacked has a good case. If anyone can provide me with details of a decent lawyer in Bangkok who has been to court and won, I'd be grateful.

I agree it's better if the rest of us leave by our own accord, rather than waiting for the inevitable. I doubt we'll get anything but at least they might think twice about doing it again. Now they know the '3 strikes and you're out' process it won't take long for them to find excuses to get rid of people.

[Scott]

The best thing for the teacher to do is to go directly to the Ministry of Labor with his concerns. They will give him guidance on the issue. It's free. Getting an attorney is going to cost him money and should be done only after he has talked with the MOL.

Best of luck to all of you.

[thunder30101]

The only decent lawyer you will find is one who doesnt take ALL of your money, before he says cannot. As scott says if you feel you have a case the best place to start is the MOL, they will advise you on the labor laws and its free, but that still doesnt mean anything if someone involved in your case has a relative or friend working there. This is thailand not a law abiding democratic country.

[Mario2008]

The labour law applies to all working. In addition for foreigners there is the alien working act.

It is illegal to work without a work permit, punisable with a jailterm of up to 5 years and/or a fine of 100,000 baht. The employer can get a fine of 10,000 baht.

A work permit belongs to the employee, not the employer, and must be produced at the place of work in case of an inspection.

[Murf]

The school sounds like a nightmare. Get out of there!

If i was you i would straight upto Laos and get a double extry tourist visa, then it gives you time to find another job. Encourage others to join you.

As said, plenty of jobs out there.

[Khunkru]

Thanks for the feedback. We kind of had a meeting today, but not much was resolved. We have another one scheduled for later in the week. I think a trip en masse to the labor office is our best option. I’ll keep you posted.

[Scott]

I would strongly suggest that you not go to the Labor office en masse. The only people who should go to the MOL are those with a legitimate contractual violation of the law.

From your post you said: Some of the new teachers are still waiting for their paperwork so they can obtain a Non Imm B Visa. They could be subject to legal problems and, if I recall correctly, a maximum of 100,000 baht fine. The school could be fined 10,000 baht. Their grievances should wait until they have an appropriate visa and work permit.

Regarding the housing: Also the director verbally agreed at the end of the last term that we would retain a 2000 Baht housing allowance. (It isn’t part of the contract, it's just paid into our banks and we sign a separate piece of paper.) I don't know that this one is going to fly. It's not written. This point would be best discussed with an attorney, IMO.

About being fired you stated: Then on Wednesday of this week one of the teachers was fired and told she had to leave at the end of the month. (The director didn’t sign it.) There was no verbal, written warning, 3 strikes and you’re out that should have been given. There was an appraisal of sorts, but it was pure fiction. She has lesson plans, evidence of students’ reports but the main reason was that she supposedly didn’t sign the contract.

This is the person who should go to the MOL. It sounds like an unfair dismissal and the appropriate procedures were not followed, nor was there significant notice given or a chance for the person to correct her deficiencies. This person maybe able to get answers about the housing situation and about wages being deducted while awaiting some paperwork. Was there a deadline set for the paperwork? Was the consequences of not being fully paid made clear to employees?

[Kf6vci]

Some folks have delusions of grandeur once they are "Assistant Director". Others lead sad lives and need to take it out on others - preferably underlings. Care to describe what kind of person has been bullying you?

The Labour Courts are free for you. And you will get an attorney assigned...

Good luck!

[SlyAnimal]

I think that you should re-think your course of action.

Check your contract very closely.

Usually we are contractors rather than employees. We provided a service, and it has a fixed duration (1 year), although usually has an opt out cause which either party can activate by giving 1 or 2 months notice.

Thus, I don't believe we are eligible for severance pay etc, not unless they don't give the 1-2 months notice when they said they would in a contract. Even then, your payout will likely be the amount of your salary which you should have still received (e.g. if they give you 3 weeks notice, but it should be 4 weeks, expect maybe 1 weeks salary). For the hassle, I probably wouldn't bother.

In my opinion, your best course of action, is probably to simply negotiate with your boss.

To assist with your negotiations, get a meeting of all of the western teachers straight away. You need to make sure that all of the teachers feel the same way, and what they want from the school + what how far they are willing to go

e.g. if it came to it, are they willing to stop working until such time as the negotiations can be settled? And would they be willing to all quit from teaching at the school?

Then organise a meeting with the director, or deputy, with both would be ideal but see what you can manage. When you are discussing with the director, one person should speak for the teachers, whoever is the most calm and has the best debating skills. As it's a negotiation, not an argument or demands backed by threats.

If negotiations fail, then you can all simply refuse to work. You might lose your jobs, but you also might find that they back down very swiftly in order to not lose face. However, negotiations first are the key. You can likely get the fired teacher reinstated too unless they were a horrible teacher / burnt their bridges (Although they might not want to come back, likewise the school might not be able to accept the loss of face associated with reinstating them, so don't push it too hard, if at all).

You don't want to go too far, or too public, too early. As otherwise you might cause people to lose face, when really you want the implied implications (e.g. loss of face) to be subtly implied (but not threatened). They will back down and then revert to the status quo (less a couple of small things you give in on so that the school can save face).

Remember, that as teachers we are the ones with the power (especially if we work together). Because there are schools a plenty, but not many farang teachers in comparison. Schools will get chewed out by the parents, and directors will lose huge amounts of face if you did walk out en masse. However, you can easily move to another area, or another school without any problems. Thus they have more to lose than you do, and so they will be the ones to back down (So long as you give them something back in return to save face + so long as you're not an arsehol_e about it).

Most important thing, is to remember you're hoping to work together after any negotiations. Therefore you can't have the relationship between employer and employee sour too much. So stay calm, work out your differences. Keep a cool head, bringing in lawyers etc will simply sour your working relationship, when you should be able to negotiate and keep everyone happy

Disclaimer: I'm not a legal expert, or employment law expert. I studied a few employment law papers in NZ while studying business, which are irrelevant here because the laws are different. However I am a firm believer that negotiation is the best way to settle a dispute. A lawyer will only complicate matters and raise expenses.

Edited June 26, 2012 by SlyAnimal

[Khunkru]

Thanks very much for your support. The Thai Head of English resigned today and was asked to wait until Monday to think about it. She can’t work with the assistant director either. The teacher who was fired has a good case for unfair dismissal and was verbally reinstated today by the director.

The assistant is on the warpath and has issued a couple of verbal warnings.

As we suspected the director wasn’t aware of the changes and they have been explained to him. I think a deal might still be possible. We’ll have to see next week, you never know in Thailand.

Edited June 27, 2012 by Scott
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[Scott]

Please keep us informed. Your in a difficult situation. I've worked with some really nasty assistants who think that the title gives them the authority to walk over people and treat others very disrespectfully.