Confused regarding severance pay for private school contract teachers

[somchaismith]

I'm confused about the advice given by two different Thaivisa sponsor lawyers. Are the following two statements conflicting or is there something which I'm missing?

It could make a great difference to how one deals with an employer.

Sunbelt Aisa wrote, "The Labor Act takes precedence over any other law and severance is due to a private school teacher, regardless of the Private School Act. A private school teacher who is in conflict with his employer should go to the Labor Courts to have the case adjudicated if the school balks at paying severance as required by law.

The termination of the contract does not remove the employers obligations to pay severance.

I hope this clears things up for you.

Regards,

Greg Lange
Managing Director
Sunbelt Asia Co., Ltd

http://www.thailandteaching.asia/work-permits/9226-thai-labour-act-1998-2008-revised-points-pdf-3.html

Somsak the forum lawyer wrote,"On a term contract, the contract ends at the end of the period stated.

A further contract is a 'new' contract and has nothing to do with previous agreements."

http://www.thaivisa.com/forum/topic/784317-severance-pay-for-international-school-teacher/?p=8807829&hl=%2Bseverance+%2Bpay

BTW, I've asked Mr Somsak the above, however he has yet to reply.

[Scott]

It would seem from the 2nd reply that it would mean that if you had an annual contract you would only be allowed severance based on having worked 12 months.

--or am I missing something?

I know of a Foreign Teacher who is suing a private school, but it's not over the issue of severance exactly. It is over the issue of being dismissed before the contract had finished and it is for the unpaid salary to the end of the contract, roughly 230,000 baht (give or take).

The teacher has lived in Thailand for a long time and will be here to see the situation through to the end, even if the school tries to drag it out.

[somchaismith]

Scott, I would really like to believe that the first statement means severance pay would be paid on each contract's period of time added to the next contract's length of time and being seen, by the law, as one continuous and full term, with termination meaning the contract coming to an end, that is not being renewed.

[Scott]

I would agree with you on your interpretation of the first reply, but the 2nd one seems to contradict that.

[Ludacris]

OP, an employer is not able to turn a permanent position into a temporary one just by issuing one-year contracts. This is absolutely without question. Imagine if that were the case, employers would be able to get out of paying proper benefits to employees just by using contracts as a work-around - no way! This includes trying to cut down on severance.

It is also nice to see that Sunbelt says the Labor Act takes precedence over the Private School Act.

This issue has come up many times in the past and please see my previous posts for more info:

http://www.thaivisa.com/forum/topic/673481-severance-pay-procedures/

http://www.thaivisa.com/forum/topic/696720-labor-issues/

[somchaismith]

Ludacris, as you are now aware, Khun Somsak, Thaivisa's resident forum lawyer has totally blown that theory out of the water.

It would be nice if we could get his input into this matter.

[Ludacris]

The lawyer's interpretation is incorrect because in the case of a teaching position the employer is using the one year contract to avoid hiring a permanent employee (ie, the position continues when the contact expires) and therefore the courts will see the contract as lasting as long as the position lasts.

The lawyer is correct though when it comes to a truly temporary position, such as an engineer working on a bridge- when the project is finished so is the engineering position and contract so no severance is due. A teacher is a permanent position and any lawyer or judge will agree that an employer cannot change a permanent position into a temporary one to get around labor law just by issuing temporary contracts.

[somchaismith]

Ludacris, if what you're saying is correct, I feel very sorry for this fella: http://www.thaivisa.com/forum/topic/784317-severance-pay-for-international-school-teacher/?p=8807829&hl=%2Bseverance+%2Bpay

[casualbiker]

As I was told it by a student who works for the Labour office. If you have 12 month contracts concurrently at the same employer for 3 years or more it is termed as a permanent position. As for the schools act, general labour laws trump it if you have done the above BUT the labour office will use the private schools act because it's easier and doesn't require permission from Bkk. As I say that's how it was explained every labour office is slightly different.

[Loaded]

The lawyer's interpretation is incorrect because in the case of a teaching position the employer is using the one year contract to avoid hiring a permanent employee (ie, the position continues when the contact expires) and therefore the courts will see the contract as lasting as long as the position lasts.

The lawyer is correct though when it comes to a truly temporary position, such as an engineer working on a bridge- when the project is finished so is the engineering position and contract so no severance is due. A teacher is a permanent position and any lawyer or judge will agree that an employer cannot change a permanent position into a temporary one to get around labor law just by issuing temporary contracts.

Not quite accurate.

Immigration only extend visas for up to 1 year; Labour only extends work permits for up to 1 year. Hence employers can only employ foreigners on yearly contracts.

However, back-to-back contracts could be seen as continuous employment in any labour dispute.

[otherstuff1957]

I may be wrong, but I was under the impression that Thai law does not recognized precedence, so each case is decided on it's own merits, rather than referring to previous decisions. Therefore, judges can interpret the law differently in two similar, but not quite identical cases.

So, we can cite cases where teachers on yearly contracts were treated as permanent employees AND cases where the opposite is true.

[Kf6vci]

How about looking at severance for just the 1 year? Many schools deny that as well. And it's a month's salary, isn't it? Nothing to sneeze at!

The first answer is really helpful, as the Labour Court will be free and provide an attorney who will challenge the school during the upcoming arbitration hearing. Yes, they will press for a settlement there and then. But you would also blaze a trail for others who will encounter the very same issues.

Those who work at a government school must file with the Administrative Court. That court charges a 2% fee of the amount claimed. Moreover, it works very slowly...

Thai schools often do as they please. They may fire someone on the spot without giving a reason in writing (with the contract language being English). Writing something in Thai and asking the foreigner who cannot understand one word "to sign". While the contract states that each party will have to give "3 months' notice". // They may not process the paperwork. // They may not give a contract in English etc. Seems that most complain, but won't do something about it. Which makes the schools bold and bluff their way out of legal trouble.

[mogandave]

Sun Belt appears to be discussing termination of a contact while Somsak is referring to completion of a contract.

I think these are distinctly different scenarios.

I believe that if one’s contact were terminated without cause, one would be eligible for severance, while if one’s contract runs out, one would not be due severance.

[Kf6vci]

I saw that Scott asked the attorney here on TV... Thanks for that, Scott!

[Ludacris]

It's worth noting that the lawyer's reply in response to Scott's questions says severance is payable and nothing about the Private School Act and teachers at private schools. It's now confirmed by 2 separate lawyers at different companies, and that's just on ThaiVisa. I'm glad we can finally put that point to rest, as well as the point about separate 1-year contracts counting towards total time employed.

Scott, can we please remember this for all the similar threads that will come up in the future instead of debating the same issues over and over every year?!? I know it's good for forum hits, but the real information needs to get out there loud and clear.

The lawyer mentioned it may be difficult to get since you have to leave the country and come back, etc, but at least now we all know it is owed.

Regarding what the lawyer said about a work permit being required- there was a case a number of years ago where the foreign employee didn't have a work visa or work permit and was still paid severance. The judge blamed the company for not providing them.

[somchaismith]

Thank's for that Scott and Khun Somsak

http://www.thaivisa.com/forum/topic/789225-confusion-about-severance-pay-for-private-schools/

[Loaded]

Severance isn't 'payable' just because a contract ends naturally or prematurely.

Teachers are eligible for severance if their contract was terminated prematurely and the manner in which it was terminated breaks labour law. If their contract ends naturally and isn't renewed by the school, severance isn't payable.

I believe that 'continual employment' includes back-to-back 1-year contracts. However, if a 1-year contract ends naturally, severance is not payable regardless of the number of years worked as the contract states specifically an end-of-employment date.

Schools can sack (terminate contracts prematurely) without being responsible for severance payments if they have followed labour law.

http://thailaws.com/law/t_laws/tlaw0132a.pdf

Section 119
An employer is not required to pay severance pay to an employee whose employment has been terminated for any of the following reasons:

(1) Dishonest performance of his duties or the intentional commission of a criminal act against the employer;

(2) Intentionally causing loss to the employer;

(3)Performance of an act of gross negligence which results in severe loss to the employer;

(4) Violation of the employer's work rules or regulations or orders which are both lawful and equitable when the employer has already issued the employee with a prior written warning, except in a serious instance when the employer is not required to give a warning. The written warning shall be effective for a period of one year as from the date of the commission of the violation by the employee;

(5)Neglect of his duties for a period of three consecutive work days without reasonable cause, whether or not a holiday intervenes;

(6)Imprisonment by reason of a final judgment, except in the case of offenses which arise from negligence or for petty offenses.

[Scott]

Here's what the 'Ask the Lawyer' has to say:

http://www.thaivisa.com/forum/topic/789225-confusion-about-severance-pay-for-private-schools/?p=8900023

[Ludacris]

Well, it didn't take long for the management types to come out of the woodwork.

Loaded you are 100% completely wrong. We have been over this numerous times on this forum and others and with multiple lawyers and labor court cases over many years and there is absolutely no dispute- Not renewing a contract for what is a permanent position (ie. teaching) is the same as terminating the employee and severance is definitely due.

If the school does not renew a teacher's contract is must be for one of the above reasons you stated for just termination of employees, if the termination is not just severance is due.

There is no way under Thai labor and the labor law of most countries that an employer can turn a permanent position into a temporary one and avoid proper severance just by only offering 1-year contracts.

Hopefully this is the last time ever people like you try to confuse this issue.

[Loaded]

Well, it didn't take long for the management types to come out of the woodwork.

Loaded you are 100% completely wrong. We have been over this numerous times on this forum and others and with multiple lawyers and labor court cases over many years and there is absolutely no dispute- Not renewing a contract for what is a permanent position (ie. teaching) is the same as terminating the employee and severance is definitely due.

If the school does not renew a teacher's contract is must be for one of the above reasons you stated for just termination of employees, if the termination is not just severance is due.

There is no way under Thai labor and the labor law of most countries that an employer can turn a permanent position into a temporary one and avoid proper severance just by only offering 1-year contracts.

Hopefully this is the last time ever people like you try to confuse this issue.

Your statements are unsubstantiated and in my opinion incorrect. Please support them with relevant quotes from labour Law.

If your employment contract ends on the day stated in your contract, you are not entitled to severance regardless of how many years you have worked for a particular employer.

'expire' and 'terminate' have different meanings - if you didn't know.

From Thai labour law:

Section 17

An employment contract shall expire when the specified period in the employment contract expires without any requirement for advance notice.

Section 118

An employer shall pay severance pay to an employee whose employment is terminated,

[Ludacris]

Like I said, we've been over this many times in the past. A contract that is not renewed for a permanent employee is deemed to be terminated, not expired. For a temporary employee expired, but not for a permanent one.

Also, Thai labor law clearly says severance is due irrespective of the end of the employment contract, from the same section and source you quoted:

http://www.vertic.org/media/National%20Legislation/Thailand/TH_Labor_Protection_Act.pdf

Section 118, page 24

"The employer shall pay the severance to the employee upon termination of the employment as follows:

...

The termination of employment under this section means any act of the employer to refuse the employee to continue working and refuse to pay wage, irrespective of the end of the employment contract or otherwise"

...

Here's another translation of the same sentence straight from the Ministry of Labor that actually uses the word 'expire':

http://www.labour.go.th/en/attachments/article/18/Labour_Protection_Act_BE1998.pdf

"Termination of employment under this Section means any act where the Employer refuses to allow an Employee to work without paying Wages on expiry of Contract of Employment..."

Section 118 then goes on to talk about temporary employees, but it's very clear that in the section regarding permanent employees the intention of Labor Law regarding severance doesn't care whether the contract terminates, expires, or whatever - severance is due for the full length of employment regardless of any 1-year contracts.

[Loaded]

Like I said, we've been over this many times in the past. A contract that is not renewed for a permanent employee is deemed to be terminated, not expired. For a temporary employee expired, but not for a permanent one.

Also, Thai labor law clearly says severance is due irrespective of the end of the employment contract, from the same section and source you quoted:

http://www.vertic.org/media/National%20Legislation/Thailand/TH_Labor_Protection_Act.pdf

Section 118, page 24

"The employer shall pay the severance to the employee upon termination of the employment as follows:

...

The termination of employment under this section means any act of the employer to refuse the employee to continue working and refuse to pay wage, irrespective of the end of the employment contract or otherwise"

...

Here's another translation of the same sentence straight from the Ministry of Labor that actually uses the word 'expire':

http://www.labour.go.th/en/attachments/article/18/Labour_Protection_Act_BE1998.pdf

"Termination of employment under this Section means any act where the Employer refuses to allow an Employee to work without paying Wages on expiry of Contract of Employment..."

Section 118 then goes on to talk about temporary employees, but it's very clear that in the section regarding permanent employees the intention of Labor Law regarding severance doesn't care whether the contract terminates, expires, or whatever - severance is due for the full length of employment regardless of any 1-year contracts.

The key is if there is an end-of-contract date specifically stated in the contract. If the employer and employee have both signed their names at the end of the contract just after the sentence that usually starts "Both parties agree to abide by the terms and conditions stated in this contract..." then the contract has expired and severance isn't payable.

If there is not an end-of-contract date, then the contract is terminated and severance may be payable if the employer has not terminated the contract according to Labour Law.

Labour Law does care whether a contract expires or is terminated that's why it distinguishes between these 2 words in sections 17 and 118.

The arbitration stage of a labour dispute may result in an employer paying compensation to an employee who signed a fixed-term employment contract which expired as they do not wish to incur the expense of going to labour court. The employee usually has free representation so doesn't worry about this expense.

[Loaded]

Like I said, we've been over this many times in the past. A contract that is not renewed for a permanent employee is deemed to be terminated, not expired. For a temporary employee expired, but not for a permanent one...

If they are a permanent employee, their contract doesn't need to be renewed, it is ongoing. IE no end-of-contract date stated in their contract.

[Ludacris]

Loaded, you are being absolutely ridiculous and I can't believe you're still going on about this and grasping about straws.

Yes of course general Thai labor law cares about 'terminated' and 'expired', but in Section 118 clearly states terminated is the same as expired for a permanent position regarding severance- and that's directly from the Ministry of Labor's English translation and I provided the exact quote for you.

Your 'end of contract date and both parties agree to the terms and conditions' argument is hopefully your last- no party can agree to terms and conditions that contravene labor law.

As far as I'm concerned this thread should now be closed to stop management types from trying to cause further confusion. Enough said.

[Loaded]

The 2 translations of Section 118 are slightly different and slightly ambiguous. However, my reading is that it's saying severance is payable if the employee continues to work without wages after the expiration of their employment contract. IE the employer has breached the terms and conditions of the contract.

A little summary of a foreign teacher's status in the LoS:

Immigration

Extensions of non-immigrant B visas give permission to stay until the end-of-contract date for up to 1 year. IE temporary, and not permanent, status.

Labour

Extensions of work permits give permission to stay until the end-of-contract date for up to 1 year. IE temporary, and not permanent, status. I've never seen or heard of a foreigner with a work permit that describes them as a permanent employee.

How can an employment contract's start and end of employment dates 'contravene' Labour Law? They are needed for both visa and work permit extensions. Please explain further.

Why would a Labour Court allow foreign teachers 'permanent' employee status and disregard employment start and end dates if the Labour department only issues foreign teachers with work permits for temporary employment according to the start and end dates stated and agreed to in their employment contract?

Continuous employment doesn't change a foreign teacher's status to 'permanent'. I'm not sure what would if it's at all possible. However, the period of continuous employment will/may be taken into account if the foreign teacher is entitled to severance.

Why would you want this discussion closed? That seems Ludacris to me. If you don't want to discuss, don't.

[Ludacris]

What the Labor Law and Labor courts are interested in is whether the position is temporary (ie. seasonal work, special project, etc.) or permanent (ie. teaching).

If the position is permanent then the contract status of the employee is irrelevant.

Continuing to quote Section 118 which discusses the status of the position, not the employee:

"Employment for a definite period under paragraph three is allowed for employment in a specific project which is not the normal business of trade of the Employer and requires a definite date to commence and end the work, or for work which is occasional with a definite ending or completion, or for work which is seasonal and the employment is made during the season."

As you can see, teaching is clearly not temporary employment.

I'm asking for this topic to be closed not to stop discussion, but because you keep grasping at straws and posting information that is incorrect even though they are very simple points of employment law.

You asked me to quote the relevant sections of law labor to back my points and I did, then you talked about a contract terminating or expiring- again a I showed you the relevant parts of the Labor Act that show you are wrong. Now you're talking about permanent vs. temporary employees and again I have shown you the relevant passage from the Labor Act which shows you are wrong.

Please stop trying to spread your agenda on here by posting incorrect information.

[Loaded]

What the Labor Law and Labor courts are interested in is whether the position is temporary (ie. seasonal work, special project, etc.) or permanent (ie. teaching).

If the position is permanent then the contract status of the employee is irrelevant.

Continuing to quote Section 118 which discusses the status of the position, not the employee:

"Employment for a definite period under paragraph three is allowed for employment in a specific project which is not the normal business of trade of the Employer and requires a definite date to commence and end the work, or for work which is occasional with a definite ending or completion, or for work which is seasonal and the employment is made during the season."

As you can see, teaching is clearly not temporary employment.

I'm asking for this topic to be closed not to stop discussion, but because you keep grasping at straws and posting information that is incorrect even though they are very simple points of employment law.

You asked me to quote the relevant sections of law labor to back my points and I did, then you talked about a contract terminating or expiring- again a I showed you the relevant parts of the Labor Act that show you are wrong. Now you're talking about permanent vs. temporary employees and again I have shown you the relevant passage from the Labor Act which shows you are wrong.

Please stop trying to spread your agenda on here by posting incorrect information.

You are asking for the thread to be closed and accusing me of having an agenda because you have been embarrassed by this thread. You claimed in this post that employers hire foreign teachers on 1 year contracts to avoid 'hiring a permanent employee'. It was pointed out that a Thai employer, because of visa and work permit restrictions, cannot hire a foreign employer on contracts longer than 1 year. You didn't/couldn't respond

http://www.thaivisa.com/forum/topic/787249-confused-regarding-severance-pay-for-private-school-contract-teachers/?p=8863082

Above, you selected a passage from Labour Law that talks about possible scenarios for employing people on temporary contracts and deduce from this that "teaching is clearly not temporary employment". That's nonsense.

Try to see past your damaged ego for a few moments. labour law was written by Thais for Thais. It can be applied to foreigners. However, a foreigner cannot be given permanent employment status. Check your visa and work permit if you need proof of this.

The Thai Visa lawyer, Khun Somsak, from Siam Firm Inter Laws agrees with me:

http://www.thaivisa.com/forum/topic/784317-severance-pay-for-international-school-teacher/?p=8806406

"On a term contract, the contract ends at the end of the period stated.

A further contract is a 'new' contract and has nothing to do with previous agreements."

'my agenda' !!!!

[Ludacris]

I didn't clarify that statement because I thought it was obvious what I was trying to say. What I meant to say is a school can't turn a permanent position into a temporary one to avoid paying severance just by putting teachers on 1-year contracts. Even if the contracts are a result of the visa and work permit situation, the teaching position does not become temporary under Labor Law.

Let's say you're a manager at a school who likes to hire and fire at will. You decide to fire a teacher who has been there for 5 years because he's been there too long and his salary is too high.

Try arguing to the Labor Court that teacher is not entitled to 180 days of severance because the employee is on 1-year visas and contracts, and each contract has nothing to do with the previous ones like your lawyer says, and the contracts expired and weren't terminated.

Good luck with that!

Even you must admit that the Labor Court obviously rejects that argument or no teacher would have ever been awarded severance, which is definitely not the case.

Case closed on this thread.

[Loaded]

I didn't clarify that statement because I thought it was obvious what I was trying to say. What I meant to say is a school can't turn a permanent position into a temporary one to avoid paying severance just by putting teachers on 1-year contracts. Even if the contracts are a result of the visa and work permit situation, the teaching position does not become temporary under Labor Law.

Let's say you're a manager at a school who likes to hire and fire at will. You decide to fire a teacher who has been there for 5 years because he's been there too long and his salary is too high.

Try arguing to the Labor Court that teacher is not entitled to 180 days of severance because the employee is on 1-year visas and contracts, and each contract has nothing to do with the previous ones like your lawyer says, and the contracts expired and weren't terminated.

Good luck with that!

Even you must admit that the Labor Court obviously rejects that argument or no teacher would have ever been awarded severance, which is definitely not the case.

Case closed on this thread.

You have either not read my previous posts or you are pretending not to have read them.

I agree that a foreign teacher's period of unbroken employment will be considered in any dispute that involves severance pay. I have posted this several times.

However, this doesn't give the foreign teacher permanent employment status. I'll repeat: a foreign teacher is not entitled to severance just because their fixed term contract expires. That was your position and it's wrong.

[Ludacris]

I'm glad to see we're starting to agree now.

A foreign teacher is entitled to severance if their fixed term contract expires and is not renewed, because not renewing a fixed term contract for what is a permanent position (ie. teaching) is considered the same as termination.

Again it's obvious that the Labor Court rejects your argument since most teachers are terminated by letting their contract expire, and the court still awards severance.