Labor Issues

[SaamBaht]

If you are on a one year contract but have worked multiple years, are those multiple years considered an unbroken, concurrent work period or limited yearly time periods. It has to do with severance pay.

I read the Thai Labor Act of 1998 but it wasn't clear. It appears the employment period is concurrent on contracts renewed year after year but maybe there is someone more knowledgeable about such matters.

[zeichen]

It should be considered unbroken if they were full year contracts. You might get screwed if they give you a 10 month contract like some schools do in order to avoid holiday pay.

[bundoi]

It depends on the type of school, the detail of your contract and the reason for severance.

[SaamBaht]

Thank you gentlemen!

[Scott]

Be aware that there is the Private School's Act which supersedes some of the Thai labor regulations and, according to most, Private schools do not have to pay severance pay.

[Ludacris]

Scott, this has been beat to death for years and it is very disappointing to see a senior moderator on here spewing such bs. The bottom line is the Private School Act actually makes the consequences for unfair dismissal for private schools much more severe than for gov't schools because they may lose their license to operate if they do not follow the procedures they specified in their license application.

Are you suggesting that private schools can hire and fire people at will with absolutely no checks and balances in place either by the regulating body or by gov't oversight? If the answer is yes, then who exactly are you suggesting is responsible for regulating the employment practices of private schools? Or, according to you, are private schools officially sanctioned to make up their own employment laws as they see fit, and then allowed operate outside of the law system that is present in the country they operate in?

Could you also tell us what procedures your school stated in their license application to the Ministry of Education for termination of employees as required by the Private School Act, and if you have also determined those procedures do not have to be followed?

OP, please be aware that many senior posters on message boards such as this are management, and is in their interests to spread fear.

I've read through it and I agree that Section 86 says labor protection law doesn't apply to employees of private schools. But that doesn't mean there's no protection or recourse at all. Section 86 goes on to say, "Working protection...shall be in accordance with the rules prescribed by the Commission." So that means the act revokes labor protection law and puts in its own protection rules. You'll probably need a lawyer to find exactly what those rules are, but it looks like the intention of Section 86 is to have rules that are no less than what labor protection law offers, and may be even stricter.

One thing no one has mentioned is other problems your school can have for dismissing you in such a way, problems that could even be worse than having to pay you severance. The Private School Act mainly describes the licensing and other requirements to carry on business as a school. Very similar to the FAA and the airline business. If you want to run an airline you need an operating certificate and have to operate it in accordance with their rules, if not you are subject to penalties up to having your license revoked. If you want to operate a private school in Thailand, you need a license (Section 18) and have to operate in accordance with their rules. If not, the school is subject to penalties.

Section 20 (4) states that in the school's license application they need to specify, "procedures on the employment and employment termination and welfares of Teachers and Educational Personnel." I highly doubt that any school would be granted a license if they specified termination procedures that were less strict that labor law allows. Even if that's not the case, I highly doubt the way you were dismissed follows the guidelines your school specified in their license application.

Moving on, Section 95 specifies the penalties the school may be subjected to if it violates the rules of the act. "The Licensor shall have the power to issue an order directing such Formal School to suspend the admission of new students or temporarily cease to carry out all or part of the business..." "The order...shall not affect the legal action taken against the person committing an act provided by the law as an offense."

The bottom line is the Private School Act is a good thing because most likely the severance provisions are no less than those prescribed by labor law, and it also opens the school up to even more severe penalties if they don't follow their own dismissal procedures stated in their license application, as well as legal action against specific individuals if they break the law.

It has been shown numerous times in Thai Labor Court (in education and other industries) that not renewing contracts of foreigners is the same as dismissal and therefore the employee is entitled to severance. If they replace you when they don't renew your contract your job isn't temporary.

If a school wants to terminate your employment they have to follow specific procedures. Simply not renewing your contract is not acceptable and you are definitely entitled to severance.

Usually a trip to the Ministry of Labor and them phoning your school is enough to get them to pay. If not, get a lawyer and take them to court.

Like I've said before, the consequences for a private school unfairly terminating an employee may even be more severe than for a gov't school because if they don't follow their own rules the Ministry of Education may even revoke their license to operate, especially if they have multiple complaints against the same school.

Given how managers here don't want to have any problems, I imagine having to go through a court case in addition to an investigation by the Ministry would be enough to make sure a wrongful termination never happens again at that school. If fact, just the thought of all that would probably make them want to sit down with you and discuss options.

The new Private School Act looks like it makes it easier to get compensation for wrongful termination as well as providing for more severe consequences for the school. Managers at private schools should take notice and stop promoting that they don't operate under any laws or have any checks and balances in place.

[Scott]

Before you accuse others of 'spewing' please read the post. I said 'there is a Private School's Act' and that 'according to most' private schools do not have to severance pay.

You also stated this: OP, please be aware that many senior posters on message boards such as this are management, and is in their interests to spread fear.

I am in the same position as any teacher. If they can get severance, I can get severance. We have had many, many threads on this forum over the years and of them I have yet to find one in which the teacher was paid severance. I don't know why. I don't know if they pursued it to the end of the case. I don't know if they settled for something less, but please feel free to cite some cases where teachers have gotten it and how the ruling was worded.

Oh, and yes, where I work we did have someone go to the Ministry of Labor for severance pay after they were released from employment at the end of his contract. The Ministry of Labor said there was no case for severance. I don't know what evidence was presented, but the outcome was 0 baht paid.

I have always been very, very clear that when people are released from employment, it is in their best interest to consult an attorney or the department of labor to find out if they have a case for severance.

The OP does not talk about unfair termination.

[culicine]

It's possible to get severance through a private school....two contributing factors - the employee was let go mid-contract and the employee was given no prior written warnings for misconduct. Also, he is part Thai, but employed on a foreign salary. I've not seen a western teacher get severance yet, though. Another case is being dragged though the courts, and I'll post back about that outcome. That one is taking several months, and on last hearing it sounded like the judge was siding with the school. In this case the employee was terminated at the end of the contract, again with no written warnings. There was also a posting a few years back, i think on TV, that the labor Law will supersede the Private School Act when it comes to severance. It's hard to believe there is NO protection for any school employee. It's bad enough there is no social security (private schools are supposed to set up a Provident fund for teachers). Perhaps Thai teachers get that, but we certainly don't.

[Scott]

It is very different when the contract is broken without just cause and following proper procedures.

[zeichen]

The issue that I know of is one teacher contract was not renewed. He had worked for the school for over 3 years. They did not terminate him only did not renew his contract and wasn't given proper notice. He did get his money after going to the labor board. He did not use a lawyer, it was a pretty clear case as the school was hiring someone younger and paid less.

But Scott is right. You do need to expect that labor board and courts will favor the school, but not when they are purely wrong.

[onlycw]

Well, yours truly got severance. Mixed in with the 80,000 B agreed on as full and final settlement.

but things have been so murky that I wouldn't want to have that settlement made public.

My own take on severance is that it applies after the probationary period and in the absence of gross misconduct like theft.

[SaamBaht]

Great info guys, thanks!

On another issue, I read through the 1998 Labor Act and it did talk about deductions from pay but it said nothing about an employer reducing salary on contract renewal. Is that legal? Has anyone experienced that? I'm talking about blanket salary reductions across the entire foreign staff.

[culicine]

Well, yours truly got severance. Mixed in with the 80,000 B agreed on as full and final settlement.

but things have been so murky that I wouldn't want to have that settlement made public.

My own take on severance is that it applies after the probationary period and in the absence of gross misconduct like theft.

You worked for a private or government school?

[culicine]

Great info guys, thanks!

On another issue, I read through the 1998 Labor Act and it did talk about deductions from pay but it said nothing about an employer reducing salary on contract renewal. Is that legal? Has anyone experienced that? I'm talking about blanket salary reductions across the entire foreign staff.

I guess the deductions are for social security, but only a government school should be taking that. I think the salary reduction is a grey area. I guess it would be justified if the school could prove why they have to do it - poor management , drop in student enrolments, etc. Never heard this happening before. It looks like they want the farang staff to quit, and employ non-native speakers at a lower salary. Not nice, if that is their goal.

[onlycw]

It should be considered unbroken if they were full year contracts. You might get screwed if they give you a 10 month contract like some schools do in order to avoid holiday pay.

For severance, there will be the minimum requirement for 30 days' pay met even with one 10 months' contract.

Q: is this a government or a private school?

The latter gets you to access the free Labour Court. File, then they will arrange a settlement conference and it could all be over in 6 weeks' time.

For government schools, you have to go to Administrative Court and pay 2% of the amount claimed.

[thequietman]

It should be considered unbroken if they were full year contracts. You might get screwed if they give you a 10 month contract like some schools do in order to avoid holiday pay.

For severance, there will be the minimum requirement for 30 days' pay met even with one 10 months' contract.

Q: is this a government or a private school?

The latter gets you to access the free Labour Court. File, then they will arrange a settlement conference and it could all be over in 6 weeks' time.

For government schools, you have to go to Administrative Court and pay 2% of the amount claimed.

Irrespective of what the law states. I know of no-one who got severance pay at any point of contract not being renewed. I know of 3 instances in 1 town. 2 government schools and a Uni. The solicitor for the guy at 1 of the government schools told him 'yes, you have a case BUT you won't win.' .... and he didn't.

If our contracts are not renewed after 3 years of continuous 1 year contracts, we still won't get severance.

If anyone knows of a real instance, I would like to know of it.

Why isn't everyone claiming severance if we are entitled to it. We can't get it. These are Thai schools and we are foreigners.

Prove me wrong....................please.

Edited January 27, 2014 by thequietman

[Scott]

OK, I'll prove you wrong. I heard from someone who has a friend whose wife knows a lady whose farang boyfriend's co worker, who worked for a school in Nakhon Nowhere and he got severance pay.

Several years ago, there was a flurry of activity on this issue and there were people who posted that they had received severance, but they posted no details. Quite a few had sought legal help or gone to the MOL, but none posted that they got severance.

I do know that when people go to the MOL and/or seek legal recourse, they will try to settle the matter amicably. Some schools will offer a settlement to make the case go away, but it's not severance. Some of these situations have mitigating circumstances and have actually violated the contract itself.

So, I'd like to hear some direct answers from people who were involved in these actions, as well.

It would certainly be helpful if people did get severance.