Confused regarding severance pay for private school contract teachers

[Loaded]

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.

You have successfully convinced me that you have a lot of personal experience of having your employment contract terminated prematurely. However, you are wrong about severance for contracts that expire. If you were right, schools would know they were vulnerable and protect themselves by insisting teachers write resignation letters before offering them new contracts, or offering them contracts that aren't back-to-back or just employing new teachers each year. They don't do this because they don't need to.

Your last sentence might as well say the world is flat. 'obvious' would mean you can support this with evidence, you can't. You are delusional.

[Ludacris]

Actually I wonder about your experience.

Schools do insist that teachers sign resignation letters when their contracts are finished when the teachers have chosen not to continue with their schools. I've personally seen this numerous times. This is to protect the school from a severance lawsuit. If the contract is renewed there is no reason to sign a resignation of course. It is only when the contract is not renewed and the teacher didn't resign that severance is due.

Loaded, you sound like an intelligent guy so I'm not sure if you're just trolling or trying to wind me up. It's in black and white straight from the Thai Labor Department that expired contracts that are not renewed entitle the employee to severance.

I don't know why you can't see this.

The quote again from Section 118 directly from the Department of Labor in case you missed it the first time:

http://www.labour.go..._Act_BE1998.pdf

"The employer shall pay Severance Pay to an Employee who is terminated as follows:

...

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.."

So who do you think is right- you or the Department of Labor?

Edited January 7, 2015 by Ludacris

[Loaded]

Actually I wonder about your experience.

Schools do insist that teachers sign resignation letters when their contracts are finished when the teachers have chosen not to continue with their schools. I've personally seen this numerous times. This is to protect the school from a severance lawsuit. If the contract is renewed there is no reason to sign a resignation of course. It is only when the contract is not renewed and the teacher didn't resign that severance is due.

Loaded, you sound like an intelligent guy so I'm not sure if you're just trolling or trying to wind me up. It's in black and white straight from the Thai Labor Department that expired contracts that are not renewed entitle the employee to severance.

I don't know why you can't see this.

The quote again from Section 118 directly from the Department of Labor in case you missed it the first time:

http://www.labour.go..._Act_BE1998.pdf

"The employer shall pay Severance Pay to an Employee who is terminated as follows:

...

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.."

So who do you think is right- you or the Department of Labor?

You could be right, but the Labour Office in Chiang Mai said to us no severance is payable when a contract expires.

You are quoting from a translation and what you've quoted doesn't make sense. It seems to be implying that when an employment contract expires, it hasn't actually expired. IE an employer must continue to employ an employee after an employment contract expires making an employment contract redundant. That contradicts Khun Somsak's comments earlier in this thread. He works with the Law so has a better working knowledge than you or I.

Anyway, I'm bored with this so I'll leave you to it.

Edited January 7, 2015 by Loaded

[Ludacris]

"It seems to be implying that when an employment contract expires, it hasn't actually expired. IE an employer must continue to employ an employee after an employment contract expires making an employment contract redundant."

Now you're totally correct! Congrats!

It makes perfect sense. As I've said numerous times, because teaching is considered a permanent position, the contract status of the employee when it comes to severance is irrelevant. I'm so glad you understand now!

Of course a contract is still worthwhile since it will outline things like salary, working hours, duties, etc., but when it comes to determining eligibility for severance the contract doesn't matter.

Sometimes when the Department of Labor or even lawyers make comments they aren't aware of the all details of the teaching position (ie. they think it's a temporary position like a kids camp or something), or not even aware of exactly what the Labor Protection Act states. Quite often Thai lawyers need to be specialists in their area of law to get it right.

You've finally read the Labor Protection Act for yourself and have interpreted the same way the Labor Court in Thailand has been interpreting it for years for foreign teachers.

Good night.

Edited January 7, 2015 by Ludacris

[smiles793]

This has been a perennial subject on the TV teachers forum, and it has never been and never will be satisfied to everyone’s satisfaction despite Scott’s (or maybe I should say as confirmed by his) valiant recent attempts to get “objective” legal advice.

This is because each case in law is different, as each case is different, and law is open to interpretation, whether it’s the law of precedence or not. Also, because some of the contributors here seem to be driven by ideology and wishful thinking rather than reality.

A lawyer for a foreign teacher who is appropriately qualified with several years of service in an organization with a good track record in that organization (and prior) may possibly be able to obtain severance.

A lawyer for a teacher with a shorter period of employment almost certainly will not, unless he or she has made a substantial and verifiable contribution, verifiable for example by public awards of excellence, but even then it is unlikely.

A fixed term contract for a foreigner is not the same as a fixed term contract for a native in any of the 20+ countries I have worked in, including Thailand. Neither is it the same in my home country for foreigners. The reasons why should be obvious.

[Ludacris]

Smiles, can you please state the relevant sections of Thai Labor Law that state fixed-term contracts are treated differently for foreigners? Can you also state the relevant sections that describe how many awards for excellence a teacher must have recieved, and what kind of substantial contribution a teacher must have made in order to be eligible for severance?

In addition, can you please state the relevant sections for some of the other 20+ countries you have worked in?

Over the years I've done research on the labor laws of many countries and frankly speaking, I can't think of one country that you would have actually worked in.

I hope none of your countries were in the EU, because "Under the Posted Workers Directive, article 3 lays down minimum standards for foreign workers so that workers receive at least the minimum rights that they would have in their home country in case their place of work has lower minimum rights" https://en.wikipedia.org/wiki/Labour_law

I also hope you haven't worked in Russia:

"Meanwhile, neither Article 59 of the Labor Code ..., include the nationality of foreign workers as a basis for concluding fixed-term employment contracts with them.Consequently, concluding a fixed-term contract is not allowed in this case. Employment contracts with foreign citizens must be concluded for a non-fixed period.

Moreover, if, despite this law's provision, a fixed-term employment contract with a foreigner is concluded, the condition of the fixed term of the contract would not apply. In accordance with Article 9 of the Labor Code, the employment contract may not contain conditions that limit the rights or reduce the level of guarantees of workers in comparison with what is already established in the Labor Code. If such conditions are included in the employment contract, then they are not enforceable.

...Furthermore, according to Article 58 of the Labor Code, if an employer has unreasonably concluded a fixed-term employment contract with a foreigner, the court may then decide that this contract is recognized as being for a non-fixed period."

http://www.themoscowtimes.com/business/business_for_business/article/431438.html

What about South Korea (from an article written for foreign employees):

" Act concerning protection of Fixed-term and Part-time Employees stipulates that a fixed-term employee who has been hired for a term exceeding 2 years is deemed as having signed a contract of an indefinite term. In short, if you hire a fixed-term worker for longer than 2 years, the legal status of the worker turns into that of a regular worker who can stay with you until his/her retirement."

How about China:

"1. Term of employment. As noted above, each employee must be hired pursuant to the terms of a written contract. After the initial contract term expires, you may re-hire the employee pursuant to a second fixed term contract. However, at the end of that fixed term the employee automatically will be converted into a employee with an open contract term. This means you have only one chance to hire an employee on a fixed term basis."

http://www.chinalawblog.com/2010/04/china_employment_contracts_ten.html

South Africa:

"Joseph referred the matter to arbitration on the basis that he was unfairly dismissed based on section 186(1)( of the Labour Relations Act 66 of 1995 (LRA). This section states that a dismissal occurs when 'an employee reasonably expected the employer to renew a fixed-term contract of employment on same or similar terms but the employer offered to renew it on less favourable terms, or did not renew it.'

The arbitrator found that the dismissal was procedurally and substantively unfair and awarded that Joseph be reinstated with backpay."

http://www.mondaq.com/x/182682/employment+litigation+tribunals/Fixed+Term+Contracts+Not+So+Fixed+In+South+Africa

Netherlands (I know they're in the EU but let's continue just for fun!):

"Outline: With effect from July 1^st, 2015, employees may be given a maximum of three fixed-term contracts over a maximum of 2 years before their employment is considered de facto permanent, with all associated rights and benefits. The “reset period” between two contracts for them not to be considered consecutive will be 6 months."

http://www.thestaffingstream.com/2014/07/17/changes-to-fixed-term-contracts-in-the-netherlands/

Poland (also in the EU of course):

"2. For a fixed period (a third subsequent fixed-term contract is signed, it is deemed to have become an indefinite term contract)."

http://www.foreignersinpoland.com/work/employment-contracts-in-poland.html

I could go on and on...

It should be clear by now that most countries in the world including Thailand, even countries that you wouldn't expect to have strong labor laws like Russia and China, have provisions for fixed-term contracts to automatically be treated as permanent employment. Also, I can't find anything at all from any country that states that foreign workers on fixed-term contracts are treated any less that they would be in their home country.

This issue has actually been resolved for many years. It's the posters who come on here who think they know what they're talking about when really they have absolutely no clue that keep spreading misinformation.

Edited January 14, 2015 by Ludacris

[otherstuff1957]

I agree with Smiles here. It's not the letter of the law that matters, it's how the law is interpreted and enforced that matters. I have personally know 3 cases where a teacher was not renewed at the end of their contract and went to court to claim severance pay.

One fellow represented himself at labor court and was told by the judge that "this aspect of labor law does not apply to teachers at private schools".

Another fellow successfully sued TWO schools for severance pay after not having his contract renewed. He used the same Thai lawyer for both cases and it took months or maybe over a year to get his payment. I don't know how much of the payment was owed to the Thai lawyer after he won!

[akaika]

I am posting this reply to an already outdated thread because it is being quoted elsewhere.

If anyone wishes to completely drill down they will find that the entire argument presented in most of this thread is incorrect and invalid.  The for drawn conclusion is therefore erroneous.

 

Suthivej Kayuraphan wrote a paper regarding this matter which should be easy to find on google scholar.  The relevant facts are as follows:  Teachers do not fall under the Thai labor protection act.  Teaching is not considered "labor" and therefore it is directly covered under the Ministry of Education regulation for principals (headmasters) and teachers.  This regulation originally did not provide clear wording but after a Thai Supreme Court case covering this matter of which I am personally familiar, the regulation explicitly stated that foreign teachers are not entitled to severance pay at the end of their contract.  Thai teachers do receive a contract but it is not extended, i.e. there is no ending date.

I have shared this information in several forums and there is considerable follow-up discussion (disagreement).  This is not an 'unusual' situation as there are numerous other professions and even some non-professional situations that have similar specialty rules such as airline pilots, health care professionals and even mariners including fishermen.

This is easily available online for anyone that really wants to find the answers...

[stubuzz]

8 hours ago, akaika said:

Teachers do not fall under the Thai labor protection act.  Teaching is not considered "labor" and therefore it is directly covered under the Ministry of Education regulation for principals (headmasters) and teachers.

Interesting, as teachers receive their work permits from the Ministry of Labour. 

[DavisH]

5 hours ago, stubuzz said:

Interesting, as teachers receive their work permits from the Ministry of Labour. 

3 foreign teachers reached the retirement age of 60 at a private school I now of. They paid out full severance to all three (all 3 at 15+ years in the school. The school wanted them out so they paid severance. It may well not be the law, but they paid anyway. This paves the way for cheaper non-native speaking teachers (50% of the outgoing teacher's salaries), so it is basically a money saving scheme over the long term.

[Callmeishmael]

I have seen a couple of teachers sue for severance pay at a private school over the years, neither of them were successful.

 

Having said that, Thai law judges each case on its own merits, rather than relying on precedent, so past experience is not a good predictor or future decisions!

[KhaoNiaw]

Different case, but I recently retired from a private tertiary institution and received the full payment according to the law, which while not exactly life-changing was still a tidy sum.