Tag Archive: employee

1. Dismissal of Employees in Thailand

   April 24, 2020 2:28 am Leave a Comment

   The Thai Labor Protection Act

   In Thailand, all employers, and employees, except for the government administration and state enterprises, are governed by the Thai Labor Protection Act of 1998 (“LPA”) (amended 2019). This act regulates the basic rights of both employees and employers by defining the working hours, welfare funding, holidays, sick leave, educational leave, maternal leave, overtime, and work safety. It also contains rules on how to legally end an employment contract, and the procedures to follow in case of wrongful dismissal.

   In Thailand, an employer is entitled to terminate the employment of employees at his/her discretion and is not required by law to specify a reason for dismissal. However, if the grounds for dismissal are not specified, an employer is obligated to make payment of statutory severance pay at the rate set out by the LPA, to an employee whose employment was terminated without reason or for reasons other than those stipulated in Section 119 of the LPA.

   

   Dismissal without cause

   Section 118 of the Labor Protection Act states that employees who have worked for 120 days or more are entitled to receive severance pay if they are dismissed without cause. Employees who have worked for less than 120 days can be dismissed without cause and are not entitled to receive severance pay.

   Notice period

   The minimum notice period for the dismissal of employees must equal to at least 1 payment period but does not need to be longer than 3 months. However, if the employment contract provides a notice period of over 3 months, the employer must comply with such specific notice period.

   Please note that a notice of dismissal is not required if an employee is being dismissed due to the reasons stipulated in section 119 of the LPA.

   Severance pays

   Severance pay must be paid to the employee when he/she is dismissed without cause and is based on the duration of the employment:

   LENGTH OF SERVICE	SEVERANCE PAY RATE
   120 DAYS ~ < 1 YEAR	30 DAYS
   1 YEAR ~ < 3 YEARS	90 DAYS
   3 YEARS ~ < 6 YEARS	180 DAYS
   6 YEARS ~ < 10 YEARS	240 DAYS
   10 YEARS ~ < 20 YEARS	300 DAYS
   > 20 YEARS	400 DAYS

   Dismissal with a cause

   Section 119 of the LPA states that an employee will not be entitled to severance pay if his/her employment is terminated on the following grounds:

   • The employee performs his/her duty dishonestly or intentionally committed a criminal offence against the employer.
   • The employee willfully caused damage to the employer.
   • The employee committed negligent acts which caused serious damage to the employer.
   • The employee violated work rules, regulations or orders of the employer which are 

   • The employee was absent from duty without justifiable reason for three consecutive working days regardless of whether there is a holiday in between.
   • The employee was sentenced to imprisonment by a final court judgment. If the imprisonment is for offences committed by negligence or a petty offense, it shall be an offense that causes damage to the employer.

   Wrongful dismissal

   Wrongful dismissal refers to a situation where an employer has terminated or laid off an employee in a manner that violates the employee’s rights under the LPA. Violation of the LPA may result in the employer receiving a fine of between 5,000 and 200,000 THB and/or imprisonment of up to one year.

   Section 49 of the Labor Court Establishment and Dispute Procedure Act B.E. 2522 (1979) states that in the dismissal case, if the Labor Court thinks the dismissal is unfair, it shall order the employer to reinstate the employee at the same level of wage at the time of dismissal. However, if the labor court thinks that such employee and employer cannot work together, it shall fix the amount of compensation to be paid by the employer which the Labor Court shall take into consideration the age of the employee, the working period of the employee, the employee’s hardship when dismissed, the cause of dismissal and the compensation the employee is entitled to receive. Cases of wrongful dismissal include:

   • Immediate dismissal without a clear and full explanation of the reason or the termination of the agreement without serious cause nor severance pay.
   • The termination of the agreement without payment of the unused annual leave.
   • The termination of the agreement based on the (claimed) violation of the work regulations by the employee without any prior warning.

   Due to the fact that section 49 of the Labor Court Establishment and Dispute Procedure Act B.E. 2522 does not provide a clear definition, or conditions for wrongful dismissal, it is the discretion of the Court to decide whether or not such dismissal is a lawful, and the amount of compensation to be awarded to the employee in case of a wrongful dismissal.  

   Conclusion

   In conclusion, the LPA regulates the basic rights and duties of employees and employers in Thailand. All employers and employees, except for the government administration and state enterprises, are governed by the LPA. Violation of the LPA either by wrongful dismissal or any other violations may result in the employer having to compensate the employee, receiving a fine of between 5,000 and 200,000 THB and/or imprisonment of up to one year.

   If an employee has worked for an uninterrupted period of over 120 days, and he/she was dismissed without cause, he/she is entitled to statutory severance pay of from 30 days’ wages to 400 days’ wages. If the employee was dismissed due to causes specified under section 119 of the LPA, the employer is not required to provide advance notice of dismissal, and he/she is not entitled to receive severance pay.

   The notice period for the dismissal of an employee is at least 1 payment period but does not need to be longer than 3 months unless otherwise stated in the employment contract.

   If an employee feels that he/she was a wrongfully dismissed, he/she may file a case with the Labor Court, but according to section 49 of the Labor Court Establishment and Dispute Procedure Act B.E. 2522, whether or not the dismissal was unlawful, and the amount of compensation the employee is entitled to depends on the sole discretion of the Court.

   If you have any questions regarding these Dismissal of Employees in Thailand, feel free to contact us at [email protected], or call us at +66 (0)2 117 9131-2.

2. Employer’s Role during the Covid-19 Outbreak

   March 5, 2020 6:41 am Leave a Comment

   With regard to the recent Covid-19 outbreak, concerns have been raised regarding health issue in the workplace. As infections can happen very easily, there are certain measures that can be taken by the employer.

   

   There is a variety of measures available to address the situation. In the case of an intensifying threat, one of the measures may even include instructing employees to work from home, to avoid the risk of exposure to the virus. It should be noted that, legally, employees are entitled to take sick leave only when they are actually sick. In the case that employees happen to be diagnosed with the Covid-19, they can take sick leave. If the amount of paid sick leave exceeds the limit allowed by law, then the employer could suggest the employee take their annual leave until they are healthy again. However, if the amount of paid annual leave period is over then both parties should negotiate for a mutual understanding and agreement. This can be done by means of a written agreement.

   On the other hand, if employees are requested to work from home when they are not sick, the provisions of the law are not as clear and many factors must be taken into consideration. These factors include the nature of work, effects on the employer’s business, and safety for the health of the employees. Regarding the nature of work, this can be seen by the example of how convenient stores employees must always go to their workplace because it would not be possible to complete their work at home by using a computer. However, most importantly, the employer should ensure that an unreasonable burden is not imposed upon the employees to complete their work outside of the office. This means that the necessary equipment that is required to accomplish the work should be provided to employees in order to facilitate them to do their work at home. It must be noted that in the case that employees are requested to work from home, it cannot be deemed to be a temporary suspension of work because employees are still entitled to receive their normal pay and benefits.

   Other possible measures that could be used by the employer include allowing employees to avoid business trips to countries with high risks, providing necessary sanity equipment in the workplace, such as alcohol sanitizers, or encouraging employees to always wash their hands.
   
   If there are any questions, feel free to contact us.

3. Termination of Employment : Part II – Dismissal of an employee

   December 14, 2016 12:00 am Comments Off on Termination of Employment : Part II – Dismissal of an employee

    

   What are the definitions of “termination” and “dismissal”?

    

   Termination of employment is an employee’s departure from a job. Termination may be voluntary on the employee’s part, or it may be at the hands of the employer, often in the form of dismissal (firing) or a layoff. Dismissal or firing is generally thought to be the fault of the employee, whereas a layoff is generally done for business reasons (for instance a business slowdown or an economic downturn) outside the employee’s performance.

    

   Dismissal is when the employer chooses to require the employee to leave, generally for a reason which is the fault of the employee. In the case of the dismissal of an employee, the contract ends without notice and without severance pay.

    

   Checklist:

   If you decide to dismiss an employee (termination without notice), please pay attention our following advice for a correct termination.

    

   1. Existence of an important reason

   Under Thai law, a dismissal is considered under the following circumstances:

   • being dishonest in performing duties or intentionally committing a criminal against the employer
   • intentionally causing damages to the employer;
   • performing an act of negligence which causes severe damages to the employer;
   • violating work rules or regulations or disobeying the employer’s orders which are legal and fair and which the employer has already given a warning letter, except in serious cases for which the employer is not required to give a warning;
   • neglecting the work duties for a period of three consecutive work days without a reasonable cause, whether or not there is a holiday intervening in such period; and/or
   • having been imprisoned by a final judgement.

   If one of the aforementioned cases is committed with negligence or is a petty case, the employer must prove that he has suffered a damage.

    

   2. Ultima Ratio (“the last resort”)

   The extraordinary termination should always be the last resort. The employer must consider any other measure that may solve the problem like:

   • transfer to another workplace or department; and/or
   • ordinary termination.

    

   3. Declaration of the dismissal

   The employer should name the important reason in the termination letter.  If it is missing, the employer cannot invoke to this reason in a future proceeding.

   It is commendable to secure oneself with warning letters (please see our FLT memo related to “Warning Letter to Employee”)

    

   4. Provide the employee with the termination letter

   The termination letter should be provided via post or personally.

   The employee can have the termination reviewed by the Labor Court. If the Labor Court finds that the termination was unjust, the employer may be ordered to letting the employee work under the old conditions.

   If it comes to the result the termination was unjust, but the continuation of work is unacceptable, the employer has to compensate for damages.

    

   5. Practical measures

   If the employee leaves the organization, certain things need to be managed, for example:

   a) Return of property

   If the employee used employer property as a part of the job, make sure you collect them. For example:

   • company laptop
   • cellphone
   • office keys
   • ID badges

   b) Cancellation of any access

   You should cancel any access the employee might have to the office. Files, computer files should be protected and make sure that your IT staff cancels passwords to any company digital files. For example:

   • disconnect the computer login
   • remove the email address from the staff list
   • disable entry building code or entry swipe card

   For the e-mail-address, make an arrangement with your ID-administrator to determine exactly for how long this account will be active, to avoid unauthorized use by the departing employee.

   c) Cancellation of advantages

   Make sure that you cancel employee benefits. For example:

   • Health-, Dental-, Life-, Disability Insurance
   • Stop retirement contribution

   d) Final pay

   Make sure that your payroll department calculates the final hours of work as well as any unpaid vacation hours and let the employee know when he or she can get them.

   Find out more about our labor and employment services

4. Termination of Employment : Part I – Warning Letter to Employee

   December 6, 2016 12:00 am Comments Off on Termination of Employment : Part I – Warning Letter to Employee

   A warning letter is useful to confirm and address a performance or conduct issue with an employee. Such performance issues may include, for example:

   • violating work rules or regulations or disobeying the employer’s orders;
   • continuously coming too late to workplace;
   • insults against employer or colleagues;
   • too frequent sick leave;
   • alcohol on workplace;
   • unexcused absence;
   • work refusal;
   • poor performance; or
   • unauthorized secondary employment.

   You usually issue a warning letter to the employee after meeting with them to discuss the problem. Following this process can help resolve issues before the situation becomes worse.
   There is no legal requirement to provide formal written warnings or a certain number of warnings. However, to determine whether an employee was unfairly dismissed, the Labor Court will consider if the employee was:

   • warned about performance or conduct issues, and
   • provided a reasonable opportunity to improve their performance and conduct.

   Theoretically a verbal warning in presence of a supporting person is allowed, but it is not recommendable. Because in court it has less evidential value for receiving and the observance of formal requirements (censure and warning function).
   Please note that warnings may not be appropriate in some cases of serious misconduct. The immediate termination of employment may be necessary in such circumstances.
   The warning shall be effective for a period of not exceeding one year from the date the employee commits the offense.
   Following is our suggested proceeding for the formal warning of an employee:

    

   Step 1: define and consider the problem

   Firstly, identify the performance or conduct issue. Think about the seriousness and duration of the problem and what kind of actions you want to take to address it.

   If applicable, review policy or contract article applicable to issue (e.g. Sick Leave; Leave of Absence; Corrective Action/Discipline/Dismissal.)

    

   Step 2: meet the employee

   The following meeting with the employee is important to:

   • identify and resolve issues before the situation gets worse;
   • explain your expectations of the employee; and
   • agree on solutions to improve the situation.

   It is best practice to let the employee know the purpose of the meeting in advance so they can adequately prepare for the meeting.

   Always document the details of any performance or conduct meeting held with an employee.

    

   Step 3: prepare the letter of warning

   The warning letter should include:

   • concrete and precise description of the performance or conduct issue (the employee must recognize it);
   • warning that the employer will determined the contract or other consequences if the employee does not change his behavior;
   • what has been discussed with the employee about the issue;
   • a plan for the steps the employee needs to take; and
   • a reasonable timeframe in which the changes or improvements need to take place.

    

   Step 4: provide the employee with the warning letter

   The warning letter should be provided via post or personally.

   Ensure that the employee gets the warning letter and if handed over personally, document the details of providing the letter (the time, the date, who was there etc.).

   Ask the employee to sign a copy of the letter and return it to you for your records (please note that employees are not required by law to sign a copy of the letter) and keep a copy of the letter for your records.

   Find out more about our labor and employment services

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