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[donna]

i would have thought so. i was given no notice at all. just told i was not needed any more becuse the new owners did not want to pay a foreigner to do the job and not to bother coming in again.

[bendix]

onethailand, on 2007-07-23 13:05:50, said:

Thai labour law is designed to protect the workers and in most cases the law sides with the worker.

That being said, if you are on a fixed-term contract there isn't likely to be much that can be done unless you feel you were unfairly dismissed. Thai labour law will *not* override any contract between employer and employee except in situations where the contract conflicts with the law. Fixed-term is certainly not prohibited by labour law and thus if the employer honors the contract and the contract does not breach the labour law, that's it.

They are, however, still required to give you notice - so if they did not do so then you are entitled to a month's pay in lieu of severance. If they do not meet this obligation, then you have the right to take them to labour court which will rule in your favor - and you could then be eligible to receive additional payments based on costs, damages, etc.

Good luck to you. No one should be unfairly treated by an employer and in this case the very least you should expect is proper notice or severance in lieu.

Disclaimer: I am not a lawyer, the opinion presented above is mine alone and has no bearing in a court of law.

With respect, if you don't know what you're talking about, best to just not talk.

You could not be more wrong if you tried. There have been innumerable examples of cases where it is shown that being on a fixed contract is no defence against not getting severance.

Have you EVEN read this thread? Have you read the Labour Protection Act? Have you read examples of actual cases? Have you talked to a lawyer.

Fact: If you are on a fixed contract and it is NOT renewed you are eligible for severance as if you were a normal employer, EXCEPT in the very rare exceptions already mentioned.

[onethailand]

bendix, on 2007-07-24 21:50:16, said:

With respect, if you don't know what you're talking about, best to just not talk.

You could not be more wrong if you tried. There have been innumerable examples of cases where it is shown that being on a fixed contract is no defence against not getting severance.

Have you EVEN read this thread? Have you read the Labour Protection Act? Have you read examples of actual cases? Have you talked to a lawyer.

Fact: If you are on a fixed contract and it is NOT renewed you are eligible for severance as if you were a normal employer, EXCEPT in the very rare exceptions already mentioned.

First, see the disclaimer.

Second, I have read the LPA many times over. Your severance is a notice period of one month or one month's pay in lieu if you are on a one year fixed contract *unless* your position is considered to be permanent - it clearly states that employees on fixed-duration are not entitled unless on non-regular business of the company, seasonal or temporary employment.

By definition a fixed-term contract is temporary - I do not understand how you can define a fixed-term contract as permanent unless this is clarified in the contract (ie. it says contract will be reviewed on an annual basis).

As I have not seen Donna's contract, I can't obviously tell. If there is any indication that it is a contract with an annual review period, as opposed to a contract with a fixed-term, then you are right, and Donna should be entitled to 3 months severance.

There are no cases that have been discussed in this thread that say otherwise. Yes, Thai Labour Law is heavily in favor of the employee vs. the employer - but fixed-term contract workers are not protected nearly as well as you imagine.

If you work in an international law firm, then it would be pretty simple for you to ask one of your colleagues, no? There is no point in starting a bickering session over who knows what when you have the ability to get a qualified answer.

[onethailand]

Well, I am willing to correct myself and point out some good news.

First of all, the complete LPA is available at:
http://www.mol.go.th/download/laborlaw/lab...tion1998_en.pdf

Secondly, in section 118, there is an exception which says that employees on fixed duration are not eligible for severance - but it is clearly marked "the provisions of Paragraph One". I mistakenly thought it read "the provisions of this section".

Paragraph 1 relates only to employees working for 120 days or less.

Paragraph 2 relates to employees working for a year but less than three years.

The Act does not make any exceptions for employees falling in Paragraph 2 - and thus the employee should be otherwise entitled to ninety days severance pay.

I take that to mean that "temporary" is "up to 120 days".

So, Donna, according to my "uninformed" reading of the LPA, you are entitled to 90 day's severance pay plus one pay period's notice (30 days, I imagine you get paid monthly).

Someone else suggested you go direct to the Labour Court - I think that is a good recommendation. You might also consider going direct to the hotel with a copy of Section 118, or the whole labor law, and present them with a request for 3 months + 1 month in lieu of notice, plus costs already incurred. There does not appear to be a provision for costs in the LPA but I imagine that it would be a fair claim. Maybe present them a copy of the complaint form you are about to file as well so they know you are serious.

Edited by onethailand, 2007-07-25 14:53:23.

[bendix]

Very noble of you to correct yourself onethailand. Nice one.

The reason I am so sure of myself on this is because i did just what you suggested many months ago - referred it to employment law specialists not only at my own firm, but also other organisations too. They confirmed that not only is the law to be interpreted in the way you read it, but that there have also been several tried and tested cases, including one involving a farang on a fixed term contract as outlined above.

Someone else suggested fixing this as a permanent thread. I agree. I think this is critically important to many farangs who are doubtless completely unaware of their rights. In fact, I'd go further; they wouldn't even think to ask because - frankly - it seems too good to be true.

In this case, though, it is true.

[onethailand]

I think a new thread covering this issue should be stuck up instead so that people don't have to read through a lot of the irrelevant stuff.

A fixed-term contract of 120 days or less wouldn't be covered - but as Donna's been there a year it's a completely different scenario. It really amounts to what the Labour Ministry defines as "temporary" or "temporary with time limitation".

Anyhow, admitting I read the LPA wrong is not a problem - what is more important is that the OP gets the information she needs to proceed (or otherwise).

[donna]

the main thing that pertains to my case, onethailand, is the difference between fixed term and non fixed term.

the law clearly states that if the work being done by the employee is related to the every day running of the business, then the contract is not fixed term.

if the work being done by the employee is a special project (lets say, for example, the pre-opening work for a new hotel) then this is clearly a fixed term project under which no termination compensation is payable.

look back over the thread and you will see i have cut and pasted some info which is very clear when you read it.

the hotel manager does not feel that he owes me anything at all, so this will be pursued, but at the moment i am doing some work in bkk which does not allow me the time to chase it as fast as i would like to. but believe me, they will be hearing more from me.

my lawyer here in bkk called the hotel and the idiot young thai girl who spoke to him had the audacity to laugh at him over the phone! so hes not pleased with their behaviour either.

[britmaveric]

Donna - seems your former employer is a wank*r and can't say much for the staff either. I'm sure they won't be laffing when they have to cough up the dosh.

[donna]

oh im SURE they will be laughing on the other side of their faces once they see the demand come from the labour court. they have ignored the letter from the lawyer, so i am off to buy some boxing gloves to go in to battle.

hel_l hath no fury and all that.....

[onethailand]

Quote

the law clearly states that if the work being done by the employee is related to the every day running of the business, then the contract is not fixed term.

This cannot be correct. The simplest example is when a female employee gets pregnant, and takes time off as permitted by law. A second person, male or female, may be drafted in to perform this person's duties - and this is directly related to the everyday running of the business. It matters not whether this person is from a temp agency or directly hired, he/she is still considered to be on a fixed-term contract.

All the law says is that, for the purposes of determining severance pay, a fixed-term contract must be for special purposes in order to be excluded.

Anyhow, you should also be aware of Section 17 - again you haven't specified exactly how your contract is worded, but Section 17 says that "a Contract of Employment shall expire upon the completion of the period specified in the Contract of Employment without the need to give advance notice. Whereas no definite period is specified in the contract,..." they have to give you one wage period's advance notice in writing.

Edited by onethailand, 2007-07-26 05:15:31.

[donna]

my contract stated that if either party wishes to terminate the contract that 30 days notice is required. the hotel did not abide by this.

[Bredbury Blue]

First, wouldn’t this topic be better moved in the visa forum with all the others of a similar ilk – including mine (search the visa forum for “Bredbury”)?

Second, I agree that if someone has the time, it would be a good idea to permanently post something related to the labour laws and termination, as it’s a topic that features often.

Third, thanks to who ever posted the link to the labour laws (5MB). Section 9 is interesting, and something I wasn’t aware of, as it refers to the employer paying to the employee interest at 15% annum during the default period (i.e. the period the employer doesn’t stump up monies owing). Well worth downloading!


I’m currently in the early days of a dispute with my company (American) who claim that their severance policy (of their Texas office) governs the upcoming retrenchment of my +1 year of employent, not Thai laws. I have challenged them on this and I’m currently waiting for their response to see what I have to do next. To get the confidence to challenge them, I first checked with four expat lawyer colleagues working in Thailand (a couple of partners in amongst them), and their Thai associates. Three replied, here are their edited responses, which may be of interest to others:

Lawyer 1: If you work in Thailand, with a work permit, for a company formally registered here, and are suing in Thai civil or labour court, the company cannot, no matter what contractual documents it may have, avoid Thai labour law, which absolutely applies. You will be entitled to a minimum severance pay based on the length of service at the time you finish up. One more point - generally, when the public interest is involved the law is mandatory - in this case, the public interest is in making sure workers are not out in the street starving. Remember there is no dole here - the state has given this burden to employers.

Lawyer 2: You are entitled to 3 months' basic salary as severance pay. If your employer proves intransigent, you may consider a claim in the Central Labour Court. If nothing else, you should at least discuss the matter with the officers there. The Labour Court in Thailand is helpful and very employee-friendly. They have staff who can help and advise you (no charge) and, if you decide to proceed, there will be minimal cost and no subsequent financial penalty if you decide to drop the case later. The Central Labour Court is at 404 Rama 4 Road and its website, all in Thai, is at http://www.centralla.../index_home.asp. The arbitration clause in your contract should not be effective to prevent you from bringing a Labour Court claim.

Lawyer 3: The short answer to this question is that if an individual has been working in Thailand with valid papers i.e. work permit, tax card social insurance then he will generally have a Thai Contract of Employment. That CoE would be subject to review by the Labour Courts under Thai Law. The basic entitlements are set out on labour office and other websites but my understanding is they amount to 3 months "pay" for between 1 and 3 years service. Pay is calculated not just by cash but includes monetary value of car or luncheon vouchers for example. There is also a preferential tax deduction available as only 50% of termination payments are taken into account for tax purposes (if you fill the forms in correctly). In practice the labour courts of Thailand have a system of mediation allowing (and requiring) the parties to come up with their own solution during hearings held over many months. Thai courts take a dim view of foreign companies treating foreign nationals badly in Thailand. The Courts are generally seen as pro worker. There are many Thai attorneys who can make a claim.

Does anybody have any knowledge, which will confirm the comments:

1. “Pay is calculated not just by cash but includes monetary value of car or luncheon vouchers for example. (I assume he means its not just something stated as ‘base salary’ or similar in your contract, but includes accommodation allowance, transport allowance, company phone, etc)
2. There is also a preferential tax deduction available as only 50% of termination payments are taken into account for tax purposes (if you fill the forms in correctly).”

I’ve posted my comments here, rather within my similar topic in the visa forum, as this one seems to have got more interest – I’m happy to go with that if it helps Donna, myself and others.

[bendix]

On the first point, that makes sense Bredbury Blue. My understanding is that it's based on total benefits, not just salary.

On the second one, that's interesting. I didnt know that. Very useful. It rings true to me, but I'll see if i can confirm that.

[donna]

i will sit down soon and take the relevant parts of this thread and make a sticky. bear with me please.

i am sure that it will be invaluable to many members.

[onethailand]

Great post, Bredbury.

The 15% interest per annum is interesting information. Furthermore, Chapter 12 (Sections 123-125) allow you to file a claim, which will be decided within 60-90 days with a maximum appeal period of 30 days. If you file the complaint and win, the employer must pay up within 15 days.

I have no knowledge of the points you've raised, though I would be interested in hearing the answers as well.

[Bredbury Blue]

1. The Labour Protection Act B.E. 2541 (1998) controls employment in the Kingdom of Thailand.

2. Foreigners who intend to work in Thailand are subject to the Alien Employment Act B.E. 2521 (A.D. 1978).

What ties 2 to 1? There must be something in one of them that refers to 1 expressly applying to Foreigners working in thailand, but what is it?

Think we all know that Foreigners working here need a work permit, etc, and therefore 1 does apply to them. But i have an employer being difficult in a claim against them so what can i show that proves categorically that my employment IS governed by Thai Labour laws and in particular 1 and 2.

Can any lawyer or Subbelt reading can advise?

[samran]

bedbury, did you see Gernimos post (post 21)?

[Bredbury Blue]

samran, on 2007-07-27 16:44:14, said:

bedbury, did you see Gernimos post (post 21)?

Yes i did thanks, and others similar on this website. However, i've had advice from several people, including lawyer colleagues (see my post this page) which says that foreigners are covered by The Labour Protection Act B.E. 2541 (1998) but nobody has explained to me why - is it because its for workers and does not expressly exclude foreigners?

My company is being difficult, i would prefer to give them some indisputable document / text which proves that foreigners working in thailand are covered by that Act rahter than end up in the labour court but all i have at the moment are generalisms.

[samran]

Bredbury Blue, on 2007-07-27 10:54:03, said:

samran, on 2007-07-27 16:44:14, said:

bedbury, did you see Gernimos post (post 21)?

Yes i did thanks, and others similar on this website. However, i've had advice from several people, including lawyer colleagues (see my post this page) which says that foreigners are covered by The Labour Protection Act B.E. 2541 (1998) but nobody has explained to me why - is it because its for workers and does not expressly exclude foreigners?

My company is being difficult, i would prefer to give them some indisputable document / text which proves that foreigners working in thailand are covered by that Act rahter than end up in the labour court but all i have at the moment are generalisms.

While I am taking in generalisms, I think you'll find that most Thai law does not specifically exclude forigners from its application. So with that, you very much appear to have a strong case if your work is doing something illegal as per the act.

[onethailand]

Quote

1. The Labour Protection Act B.E. 2541 (1998) controls employment in the Kingdom of Thailand.

2. Foreigners who intend to work in Thailand are subject to the Alien Employment Act B.E. 2521 (A.D. 1978).

What ties 2 to 1? There must be something in one of them that refers to 1 expressly applying to Foreigners working in thailand, but what is it?

The Alien Employment Act specifies what types of employment are not permitted for aliens.
http://eng.mol.go.th..._labour.html#h1

The Labour Protection Act covers all workers in Thailand regardless of their nationality. We farangs are subject to both Acts, while Thais are only subject to the Labour Protection Act.

Edited by onethailand, 2007-07-27 20:01:00.

[Netfan]

If only this thread had come up 2 months ago. or maybe i should say if only i had started this thread 2 months ago. i just went thru this with my employer- after 6 years of one year "roll over" contracts i and several other foreigners were given letters 30 days prior to the renewal date saying "thanks, but you're no longer needed, your contract wont be re-newed". We invesigated and found out everything thats been said here is true. However, apparently so did the company so they ended up giving us all new contracts, saying the original letters were "a mistake". I would have gone to the Labor Board but was a bit leary of getting a fair shake, and took the new one year contract. Since then I have found out we would have won. One other thing that hasnt been mentioned- once the company gives you the termination notice, they cannot come back with any reason not given in the notice as to why you were let go. For example they cannot suddenly turn up at the Labor Board and say you were a bad employee or had a bad attitude if the termination notice doesnt say so.

[onethailand]

Netfan, on 2007-07-27 21:38:34, said:

One other thing that hasnt been mentioned- once the company gives you the termination notice, they cannot come back with any reason not given in the notice as to why you were let go. For example they cannot suddenly turn up at the Labor Board and say you were a bad employee or had a bad attitude if the termination notice doesnt say so.

Correct - good point.

Curious why a company would "no longer need" workers then suddenly hire them back again... no matter what they do they will have to deal with the situation sooner or later... if they really no longer needed you why not just pay the correct compensation and get it over with? Or are they planning to give you a full 3 months' notice this year in order to save 3 months' severance?

[donna]

just an update to my situation. i went to see my lawyer today who has armed me with all the relevant paperwork to take to the labour court in phuket. i will deliver the docs, set a date for the hearing and hopefully all will be well.

i have heard that if the employer does not show up the first time they can reschedule but if they do not show up the second time, that the court decides on the amount and orders the employer to pay up pronto. is that correct?

[Netfan]

onethailand, on 2007-07-27 22:24:00, said:

Curious why a company would "no longer need" workers then suddenly hire them back again... no matter what they do they will have to deal with the situation sooner or later... if they really no longer needed you why not just pay the correct compensation and get it over with? Or are they planning to give you a full 3 months' notice this year in order to save 3 months' severance?

Good question. One that I'm sure we'll learn the lanswers to next year. We think what will happen is they will come up with some "reasons" why the contracts should not be renewed next year. But we still have those original termination letters in hand. They will be useful. Which is another thing I learned- get and keep everything in writing!

[onethailand]

donna, on 2007-07-27 22:30:28, said:

just an update to my situation. i went to see my lawyer today who has armed me with all the relevant paperwork to take to the labour court in phuket. i will deliver the docs, set a date for the hearing and hopefully all will be well.

i have heard that if the employer does not show up the first time they can reschedule but if they do not show up the second time, that the court decides on the amount and orders the employer to pay up pronto. is that correct?

Once filed in court there is a maximum 90 day period for the issue to be decided. Once decided both parties have maximum 30 days to file an appeal, and if the employer appeals he must deposit the entire amount in question with the court in order to file an appeal.

Once the decision is final, the employer has 15 days to pay up.

I would presume that most cases are decided within 60 days, this is perhaps why you have the explanation you got.

Netfan, I meant 3 months' pay in lieu of notice.. LOL.. severance will be based on the time served. I think Donna posted a chart on the first page of this thread somewhere...