Is a written warning required before termination?

[inquisitive]

If an employer wants to terminate an employee before his contract expires, is it necessary to give the employee written warning first? For example, if the employee isn't functioning up to expectations/hopes, can the employer just can him at will, or does he have to tell the employee what the deficiencies are and give the employee a chance to fix the problem before he is actually dismissed?

[fstarbkk]

My experience from 6 years as GM in a Thai company with 500+ employees:

Employer can terminate any employee, provided he is prepared to pay notice and severance as prescribed by the labour act.

To terminate "for cause", a written warning, describing the specific deficiencies and what is necessary to meet expectations, is required. An appropriate warning period needs to be given, for the employee to correct their deficiencies. The warning letter needs to state that termination will result from failure to achieve a satisfactory improvement.

Immediate termination is only possible in cases of gross misconduct, such as criminal behavior (violence, willful damage to company property, theft etc.). In such cases, a police report may be useful to file a police report for further legal action, as necessary.

The labor act allows for a 3 month probation period at the beginning of employment. During this time termination can happen at any time, at the discretion of the company.

Following these guidelines has served me well and has resulted in zero problems with the labor department or the courts.

[Pib]

The labor act allows for a 3 month probation period at the beginning of employment. During this time termination can happen at any time, at the discretion of the company.

Regarding that 3 month probation period, some (or many)) employers abuse the heck out of that especially for low skills, laborer jobs. They abuse it by really working the new employee like a dog during that period...sometimes 7 days a week. I have several in-laws who can only get the 300 baht/day type unskilled jobs (or little skill required like being a driver) and whenever they change jobs they always complain about the first 3 months of a job, the extra hours usually with no pay, etc. Do they complain to the labor dept--no, because they do not feel it will do any good...quite possibly affect them getting the new job when the new potential employer wants to call the old employer. Thai labor laws leave a lot to be desired in true labor protection.

[inquisitive]

I've seen that as well. My question is whether or not a written warning MUST be given "for cause" after the probation period. I believe it is good practice, but is it legally mandated?

[Goldieinkathu]

Have a look through this , might find your answer -

http://thailawonline.com/en/thai-laws/laws-of-thailand/105-labor-protection-act-be-2541-1998-.html

[fstarbkk]

I've seen that as well. My question is whether or not a written warning MUST be given "for cause" after the probation period. I believe it is good practice, but is it legally mandated?

I don't see why you wouldn't cover yourself. If you fire for cause without documentation and the employee runs to the labor department for "unfair dismissal", you're on the hook for full notice and severance. That's the best case. The worst case is, that you have to re-hire the person, with back-pay.

[inquisitive]

I have to agree with you. Unfortunately the ex-employee in question was terminated without any cause stated. He was given 3 months pay "in lieu of notice". That prompted him to ask me what the requirements for legal notice were. Naturally enough, I replied that I didn't know the answer, but I knew lots of knowledgeable folks on TV and I'd find out for him.

As best I can tell, the company is not required to give a reason for the termination so long as they give the appropriate amount of severence pay. That sounds a bit counterproductive to me (instead of improving an already partially trained employee, management simply hopes the next untrained recruit will miraculously and innately know everything needed for the position - something that their own experience argues against.

Still, the question was not so much what would be the fairest thing for all involved, nor even what would best serve the interests of the company. My friend merely wanted to know what the law required. In this case it may be somewhat unenlightened.

Thank you everyone for your fine help.

[blackcab]

If an employer wants to terminate an employee before his contract expires, is it necessary to give the employee written warning first?

No. But if the employee is not terminated correctly then severance pay would be awarded by the labour court.

[fstarbkk]

I have to agree with you. Unfortunately the ex-employee in question was terminated without any cause stated. He was given 3 months pay "in lieu of notice". That prompted him to ask me what the requirements for legal notice were. Naturally enough, I replied that I didn't know the answer, but I knew lots of knowledgeable folks on TV and I'd find out for him.

As best I can tell, the company is not required to give a reason for the termination so long as they give the appropriate amount of severence pay. That sounds a bit counterproductive to me (instead of improving an already partially trained employee, management simply hopes the next untrained recruit will miraculously and innately know everything needed for the position - something that their own experience argues against.

Still, the question was not so much what would be the fairest thing for all involved, nor even what would best serve the interests of the company. My friend merely wanted to know what the law required. In this case it may be somewhat unenlightened.

Thank you everyone for your fine help.

For the situation you describe, the labor act provides the following minimum severance:

120 days -1 year uninterrupted employment = 30 days pay

1 year - 3 years = 90 days pay

3 years - 6 years = 180 days pay

I hope this clears things up.

[Dagnabbit]

My experience from 6 years as GM in a Thai company with 500+ employees:

Employer can terminate any employee, provided he is prepared to pay notice and severance as prescribed by the labour act.

To terminate "for cause", a written warning, describing the specific deficiencies and what is necessary to meet expectations, is required. An appropriate warning period needs to be given, for the employee to correct their deficiencies. The warning letter needs to state that termination will result from failure to achieve a satisfactory improvement.

Immediate termination is only possible in cases of gross misconduct, such as criminal behavior (violence, willful damage to company property, theft etc.). In such cases, a police report may be useful to file a police report for further legal action, as necessary.

The labor act allows for a 3 month probation period at the beginning of employment. During this time termination can happen at any time, at the discretion of the company.

Following these guidelines has served me well and has resulted in zero problems with the labor department or the courts.

You have been very lucky.

Regardless of the offer or payment of severance, an employee can sue for wrongful termination. And that's not very difficult for them to win in the Thai labor courts. Should the employee win that case, the labor court can force you to re-instate the employee or pay compensation (depending on the suit).

Financial compensation for wrongful termination is in addition to severance and is completely at the discretion of the judge but the norm is an additional 1 month salary for each year of service. Saying that, a lawyer recently told me that 2 years was quite common.

There's plenty of horror stories about this. My favorite was from a friend that was country manager for a large FM firm out here. They had a Thai guy working on one of their sites. Each time a non-warranty repair job came in, this guy would farm it out to a company he owned instead of the company he worked for. They fired him when they found out but in the end had to re-instate him at the courts insistence. The guy was literally ripping them off and he still won in court and they had to take him back on.

The best approach in my opinion is to do the following:

- calculate the severance amount + 1 months notice + next salary

- add on a reasonable amount more and get a cashier cheque for the total

- write a resignation letter in the name of the person you want to fire

- get them in a room. Explain it is their last day. Tell them they can sign the resignation letter and take the generous cheque OR they can be terminated, have that on their record and get the standard severance amount

That has never failed for me. This wont work after a series of warnings as they may well have already taken legal advice and probably wont sign.

Most people are so shocked, they just fold and sign and are happy that they got to resign instead of being fired.

[Dagnabbit]

I've seen that as well. My question is whether or not a written warning MUST be given "for cause" after the probation period. I believe it is good practice, but is it legally mandated?

There is a process of writing warnings built into labor law here - but the bottom line is it is VERY hard to terminate people in Thailand.

Have you ever wondered why the "transferred to an inactive post" thing is so common here? It's precisely because it is so hard to fire people.

What I would do is pay for an hour with Benjama Apaiwong. She is one of the best labor lawyers in the country.

All expats should understand this thoroughly. If you are working here and you do not understand the wrongful termination rules, then you are going to be at a disadvantage if it ever comes to negotiate your own termination.

Last time I was laid off, the fact that I saw the writing on the wall for about a year before. I'd already been through labor court with a previous employer here and won. To get Benjama to review my case and give a legal opinion cost me about 40k THB. That knowledge saw me walk out of the termination meeting with an extra $100k on top of the severance payment. They had a choice of a wrongful termination suit that they would lose or pay me more to waive my right to sue. 2 Thai lawyers were present and they told the employer to cut his losses and pay.

Long story short - do NOT just fire someone here - just in case they know the rules.

Edited April 30, 2016 by Dagnabbit

[blackcab]

On the other hand, do the maths. Sometimes it's cheaper to dismiss someone and pay what you are ordered to pay than keep having them defraud the business.

I wouldn't worry about the reinstatement thing to much. I can't see a Thai person staying in a job where they can't continue to defraud and where they lose face daily.

I've worked in a Thai business where staff where found to be stealing cash. When the business process was changed so they didn't handle cash anymore they quit. Their salary wasn't enough for them.

[Chopperboy]

Don't terminate staff - instead get them into a position where they want to resign. Loss of face is one way to do it - the threat of being given a written warning may be enough to trigger a resignation.

[BestB]

On 4/19/2016 at 11:58 AM, inquisitive said:

I've seen that as well. My question is whether or not a written warning MUST be given "for cause" after the probation period. I believe it is good practice, but is it legally mandated?

Yes and not one but 3 warnings.

 

Though it may still land you in labour court.

 

as someone mentioned there are many other ways to get someone to quit.

 

example if they can only work mornings , you move them to afternoon or nights .

 

if they must have Sunday off, you change it to Monday and so on

[Chopperboy]

20 hours ago, BestB said:

Yes and not one but 3 warnings.

 

Though it may still land you in labour court.

 

as someone mentioned there are many other ways to get someone to quit.

 

example if they can only work mornings , you move them to afternoon or nights .

 

if they must have Sunday off, you change it to Monday and so on

Absolutely, you can use a range of tactics to make life as uncomfortable as possible to get them to quit - though expect a bit of passive revenge from them at the least.

 

The warnings 1-3 should only be used to get them to quit and not as a reason to sack, because as we know even then they can still win in a labour court. 

[BestB]

7 minutes ago, Chopperboy said:

Absolutely, you can use a range of tactics to make life as uncomfortable as possible to get them to quit - though expect a bit of passive revenge from them at the least.

 

The warnings 1-3 should only be used to get them to quit and not as a reason to sack, because as we know even then they can still win in a labour court. 

With each warning have to also give time for them to fix their problems which means at least 1 month for each warning.

 

Then if they decide to go to labor court, you would have to prove their under performance which is not always easy.

 

Some people are just genuinely incapable of doing their job and some do it just to get fired to get a payout.

[Scottjouro]

On 4/19/2016 at 10:58 AM, inquisitive said:

I've seen that as well. My question is whether or not a written warning MUST be given "for cause" after the probation period. I believe it is good practice, but is it legally mandated?

No a written warning is not legally mandated, the steps taken are dictated by the reason of ones termination, ie if one stole from the company or committed another "illegal" act...termination would be automatic, no written warning is applied

 

 

 

 

[BAYBOY]

For the legal issues explained fully re termination, severance pay, reasons why termination can occur, advice re written warnings etc. etc.

Go to the Ministry of Labour website, look for Labour Protection Act BE2541(1998) scroll down to a detailed what it is about, load the PDF pages and look for chapters 10, 11, 12.
All explained clearly and is the Ministry's English translation.
Should solve any queries.

Going through this at the moment, so far 4 court hearings and the 5th in December. Pretty stressful, sadly as it involves my late wife's family.


Sent from my iPad using Thaivisa Connect

[BAYBOY]

Sorry theMinistry of Labour website is

www.mol.go.th

BAYBOY.


Sent from my iPad using Thaivisa Connect

[Chopperboy]

On 10/5/2018 at 3:58 PM, Scottjouro said:

No a written warning is not legally mandated, the steps taken are dictated by the reason of ones termination, ie if one stole from the company or committed another "illegal" act...termination would be automatic, no written warning is applied

 

 

 

 

You'd have to prove that they stole which could be hard unless they were actually charged and convicted of it in a criminal court. The attitude usually taken is "why did you put them in a position where they could steal" i.e its the employers fault for failing to control or monitor them adequately.

Edited October 13, 2018 by Chopperboy

[Chopperboy]

On 10/9/2018 at 1:05 AM, BAYBOY said:

For the legal issues explained fully re termination, severance pay, reasons why termination can occur, advice re written warnings etc. etc.

Go to the Ministry of Labour website, look for Labour Protection Act BE2541(1998) scroll down to a detailed what it is about, load the PDF pages and look for chapters 10, 11, 12.
All explained clearly and is the Ministry's English translation.
Should solve any queries.

Going through this at the moment, so far 4 court hearings and the 5th in December. Pretty stressful, sadly as it involves my late wife's family.


Sent from my iPad using Thaivisa Connect

Sorry to hear about that - the problem is that the Labour Protection Office has been described to me as being quite powerful and hard to beat. To win you need to pull out all the stops especially on discrediting the planitif in a true and meaningful way - else settle out of court.

[pedro01]

On 4/19/2016 at 2:23 AM, fstarbkk said:

 

 

sorry - mis-post!

Edited October 14, 2018 by pedro01