Probationary Period

[inquisitive lobster]

Hi There,

I wanted to know about the rules of the Probationary Period.

I know that it lasts a period of 120 days (not sure if that is working day or just normal days), from the date a person is employed and within that time the employer may fill out an assessment sheet, state that you have failed the probation and terminate the employee as well as give the employee payment for the next pay period (For example if someone is terminated within the 120 day period on lets say March 2nd, and the employee is paid monthly which is on the 1st of every month, the next pay period would be April 1st. So the employer is required to pay for the rest of March up to April 1st)

My question is, can the employee take the employer to court or sue for wrongful termination even though it was within the probation period?

[onthemoon]

When you employ someone, you sign an employment contract with them. Our HR manager uses one he downloaded from the internet. It says the employee is on 3 months' probation from [insert starting date]. So, before the end of the three months, we tell the employee (in writing) whether they have passed probation or not. If they haven't, probation can be extended by another 3 months, and then the final decision has to be made.

I understand that if we don't say anything and the employee keeps working in our office, it automatically means that they have passed the probation. I also understand that the extension of the probation period has to be made in writing (with the employee signing that they received it), and only extensions up to a total of 6 months of probation are allowed.

I am not a lawyer but I believe our HR manager has checked this with a lawyer, and that it conforms with Thai law and should apply even if there was no written contract.

Please don't believe me; if you have a case like you say (and you mentioned 120 days, that's different), I suggest you contact a lawyer.

Edited June 3, 2015 by onthemoon

[inquisitive lobster]

Thanks for the reply.

I also want to know where in Thai Law (the specific part of the act) it states that there is a Probation Period. I have checked it up and down and the only thing I could find was that under Section 118 of Labour Protection Act B.E 2541 was that if an employee works 120 days or more, they are entitled to severance pay, but anything below 120 days does not get severance pay.

Also if the employee does not pass probation and receives pay for up to the next pay period, can the employee take legal action against the employer for some kind of compensation?

[WhoWhenWhyWhat]

Hi, I'm a newbie in this forum and came across this post.

Firstly, pertaining to your question, @onthemoon, is spot on! It's not only in Thailand but a widely used standard of Employer/Employee contract in Singapore, Malaysia and Indonesia.

Agreed, there might be no one clear defining all of the 'what if' scenarios.

Based on those guidelines stipulated in Labour Protection Act.

The employment CONTRACT that's tendered, agreed and signed that's binding.

Thus it's reliant on the above. As for seeking legal actions for compensation it depends on the circumstances. Is the nature of termination unjustified? There are myriads of reasons but foremost, does it breached any in the binding Contract?

One example, say an employee accepted work and signed the binding employment Contract.

During the probationary period he/she performed and fulfilled the contract to the letter.

But for reasons of bad personal hygiene was terminated.

Now, it's not in most binding contract.

Thus, the onus of getting compensated or not to compensate lies on both the employee and employer to prove whether it's unjust, just and...etc.

It depends, but @onthemoon had answered it quite succinctly.

Regards

P.S. Though, I have came across an employment contract with detailed personal hygiene as one of the pre-requisites.

Edited June 4, 2015 by WhoWhenWhyWhat

[konying]

Been taken to labor department too many times, so learned the real "law"

120 days is the probation period, within which employer does NOTneed to give any reason or explanation for terminating an employee, nor does employer have to pay for the remainder of the month as OP explained.

If employee is terminated on 2nd, and payday is on the 1st, the only money owed is 1 day, ie the second.

Work agreements and contracts have ZERO meaning in labor department or court,

Example being, in contract i have, every employee is charged 3000 baht deposit which is fully refundable at the end of employment, providing employee gives 15 days notice if they want to resign.

Well, it means nothing with labor department.

Saying that, trick to avoid problems is to get employers to sign every wrong doing and penalty applied.

Example employee writes wrong bill and company loses money.

Normal procedure here is to cut employees salary.

If that person goes to labor department and claims they have no idea why salary was cut, employer is forced to pay back this money, however if employee signs that he/she aware of the wrong bill and loses caused, then no problem with withholding this amount.

While appearing to be a bad boss and draconian regulations, with local staff without it, you would be out of business very fast, as hardly anyone has any sense of responsibility or care

Edited June 4, 2015 by konying

[WhoWhenWhyWhat]

Intriguing! A boss with experience dealing with the nonsense Thai employees can and will deliver.

Might adopt some methods though tweaking it a bit...hahaha.

But have been to the Labour Department myself, so have to disagree on the validity of a contract is Zero, as it was settled accordingly with regards to the Contract.

Other than that, everything else @konying have answered are valid. In fact, an applicable means to operate in Thailand.

Regards

[konying]

Intriguing! A boss with experience dealing with the nonsense Thai employees can and will deliver.

Might adopt some methods though tweaking it a bit...hahaha.

But have been to the Labour Department myself, so have to disagree on the validity of a contract is Zero, as it was settled accordingly with regards to the Contract.

Other than that, everything else @konying have answered are valid. In fact, an applicable means to operate in Thailand.

Regards

Sadly each and every occasion, they totally dismissed the contract or anything written in it.

The only thing that was/is found valid is employees signature of acceptance.

One may even do without a contract and on each occasion employee does something wrong, just issue a warning or acknowledgement letter with employees signature and clear notice of penalty.

99.999% of the time, every single employee i have had never bothered to read past the first paragraph of the contract, and mine is only 2 pages.

Might be different in larger organizations with better educated people.

[onthemoon]

It probably depends on how the contract is written. If the labour department says your contracts are not valid, there must be some reason for it and you want to discuss the wording with a lawyer specialised in employment law.

If the employee signs it without reading it, it is their problem - it is still valid. Regardless of the size of the organisation.

[konying]

It probably depends on how the contract is written. If the labour department says your contracts are not valid, there must be some reason for it and you want to discuss the wording with a lawyer specialised in employment law.

If the employee signs it without reading it, it is their problem - it is still valid. Regardless of the size of the organisation.

Mine was written by a lawyer, so i do not think its the wording.

To go step further, when in labor department, they refuse to even look at it and state it makes no difference as it contradicts labor law.

Which is a contradiction in itself, if contract states employee must give 15 days notice to receive back the deposit, it can not possibly be against the labor law, where if employee signs they agree to give it up, it becomes legal.

May be people in labor department speak differently with lawyers, but this is my experience and as i mentioned i have been too many times.

Funny enough, battling at the moment with one.

A f*^*&ing moron, who is drunk 24 hours per day,bust her stealing and cheating customers, did not terminate her, she quits on the spot, signs that she does not want the deposit back and acknowledges the "mistakes"

Then signs that she was paid and full and satisfied with the payment, then goes to labor department and files a case.

After providing all the evidence and her signatures, she claims she did not sign anything.

Not only i have her signatures, but also have it on CCTV recorded and she is still claiming she did not sign anything and labor department is still keeping the matter open.

Edited June 4, 2015 by konying

[inquisitive lobster]

Hi Guys,

Thanks for all the great answers.

So lets says there is a clause in a contract that states that within the probationary period either party may terminate the contract (there is another clause that states the probationary period is 120 days), will this be legal?

And furthermore can the employee still try to claim compensation for unlawful termination?

Also separately, if an employer promises someone a job for a future date(in writing/email) provided they can meet certain requirements (done verbally) and the employee states that they are able to meet those requirements (done verbally) but then states otherwise(meaning they are not able to meet those requirements which is also done verbally), and the employer then sends an email saying that they are not going to be hired, can the employee take legal action against the employer. Please note that no contract was signed.

Breakdown:

- Employer promise employee job for a future date if they can meet these requirements (Written and Verbal)

- Employee accepts and states they can meet requirements (Verbal and Written)

- Employee states not able to meet all requirements, only some. (Verbal)

- Employer states not hiring employee anymore(Written)

[WhoWhenWhyWhat]

Hi Guys,

Thanks for all the great answers.

So lets says there is a clause in a contract that states that within the probationary period either party may terminate the contract (there is another clause that states the probationary period is 120 days), will this be legal?

And furthermore can the employee still try to claim compensation for unlawful termination?

Also separately, if an employer promises someone a job for a future date(in writing/email) provided they can meet certain requirements (done verbally) and the employee states that they are able to meet those requirements (done verbally) but then states otherwise(meaning they are not able to meet those requirements which is also done verbally), and the employer then sends an email saying that they are not going to be hired, can the employee take legal action against the employer. Please note that no contract was signed.

Breakdown:

- Employer promise employee job for a future date if they can meet these requirements (Written and Verbal)

- Employee accepts and states they can meet requirements (Verbal and Written)

- Employee states not able to meet all requirements, only some. (Verbal)

- Employer states not hiring employee anymore(Written)

Lobster,

I am no expert but just one of the many foreign employers with Thai employees and had to endure the idiosyncrasies of employer/employee relationship.

Pertaining to having a Contract during the hiring or without depended on which school of thoughts are you inclined towards.

Both are applicable, of course.

FYI, the clause in your 1st question is indeed in my employment contract with an added phrase..."without any given notice".

In other words, the employee may terminate the employment contract without giving any notice...they can simply pack and walk off, or not turn up at all.

But, there's a sub-clause in my contract in the event of such...

"...if the termination of the agreed employment contract is without notice, any outstanding salary or payments will be calculated and paid at the end of the company's salary disbursement date."

However, if the employee though not obligated to, but have the courtesy to inform their desire to terminate the contract within 48hr period. He/She will be duly paid at the point of the contract is terminated.

As the employer, I cannot apply the same principle as you might have surmised.

The employee needed to be notified at that particular moment that the employment contract has been terminated and ourstanding salary/payment due will be paid within 24hr period.

Well, I'm not going to elaborate on the myriads of reason for such a termination and it very much depends and differ in circumstances.

As to the legalities, it is legal and binding from my business perspective.

But I could not answer the question,..."And furthermore can the employee still try to claim compensation for unlawful termination?".

What is the hypothetical scenario for such a claim???

For your last question, a simple answer from me. A verbal agreement with no proofs of hiring doesn't make the person promised of a position in the essence of the word, "an employee".

Thus no recourse nor ground for a claim 'for breach of contract'. It's merely a promise made.

However, there's always a civil litigation recourse that can be put forward if the said verbal "promised" had inadvertently caused distress emotionally or financially to the would be employee.

I know of a real case scenario where the claimant succeeded in her preposterous civil suit.

Please note that I'm not an expert and all my answers are from humble experiences and to the best of my knowledge.

Cheers

Edited June 5, 2015 by WhoWhenWhyWhat

[konying]

Hi Guys,

Thanks for all the great answers.

So lets says there is a clause in a contract that states that within the probationary period either party may terminate the contract (there is another clause that states the probationary period is 120 days), will this be legal?

And furthermore can the employee still try to claim compensation for unlawful termination?

Also separately, if an employer promises someone a job for a future date(in writing/email) provided they can meet certain requirements (done verbally) and the employee states that they are able to meet those requirements (done verbally) but then states otherwise(meaning they are not able to meet those requirements which is also done verbally), and the employer then sends an email saying that they are not going to be hired, can the employee take legal action against the employer. Please note that no contract was signed.

Breakdown:

- Employer promise employee job for a future date if they can meet these requirements (Written and Verbal)

- Employee accepts and states they can meet requirements (Verbal and Written)

- Employee states not able to meet all requirements, only some. (Verbal)

- Employer states not hiring employee anymore(Written)

So lets says there is a clause in a contract that states that within the probationary period either party may terminate the contract (there is another clause that states the probationary period is 120 days), will this be legal? Yes legal

And furthermore can the employee still try to claim compensation for unlawful termination?No

if an employer promises someone a job for a future date(in writing/email) provided they can meet certain requirements (done verbally) and the employee states that they are able to meet those requirements (done verbally) but then states otherwise(meaning they are not able to meet those requirements which is also done verbally), and the employer then sends an email saying that they are not going to be hired, can the employee take legal action against the employer. Please note that no contract was signed.No