Second article on Thai labor law and how it applies to teachers
This article is about how the Thai labour court works, how much money you can get and how much it will cost you.
End of March is the time when most schools ‘let go' of their unwanted staff. And almost all of them use the feeble excuse of 'we will not renew your contract next semester" to let them go.
I have outlined the law concerning fixed term contracts in my previous article, but I will give a quick review: Section 17 of the Labour Protection Act states that a contract expires when the specified period in the contract expires. However, Section 17 should be read in conjunction with Section 118 which states that employment of a fixed duration exists only in special cases.
This might be a special project, temporary and/or seasonal work, or the work has to be completed within a two-year period. A fixed term contract has a start and end date, and has to be signed before employment commences, and not while working. An example of a fixed term contract for teachers would be someone replacing a teacher that is on maternity leave.
When a teacher is fired for gross misconduct (drunk at work, stealing, etc), he or she is not liable for any claim. However, the school has to state the reason for termination at the time of the offence, as they cannot claim misconduct later.
I would like to point out that I had been to the labour court twice after not being rehired following a non-renewal of contract, and both cases were settled in my favour. I even had the judge pointing out Section 17 (fixed term contract), only to be corrected by my lawyer on Section 118.
How the courts work
The first step when you consider taking your employer to the labour court would obviously be to get as much evidence as possible: payslips, emails, letters, work permit, or recordings to convince the courts that you have a case. I would also advise a teacher never to resign or sign a resignation letter. You have thirty days to submit your case to the labour court, unless you have special circumstances. Thereafter a court date will be set, usually four to six weeks after the case was submitted.
The first step when you go to the labour court is mediation. It is an informal process where both parties sit around a table with one or two mediators who will try to get you (the plaintiff) and the school (defendant) to reach a settlement. Very few cases are settled during the first mediation process.
The mediation process is quite relaxed. The mediator sits with both parties around a table in the mediation hall. There are no formal court procedures, no recordings and no verdicts. During my mediation there were no lawyers present either, only my interpreter.
The mediation process does not focus on the merits of your case. It is rather about reaching a settlement and can drag on for a few sessions before a settlement is negotiated.
When the two parties cannot settle, the mediator will refer the case for arbitration. Arbitration is a formal process in a court room with (in my case) three judges, lawyers and an interpreter. Both parties will submit evidence and may call witnesses. However, the court procedure is not like in 'LA Law'. In the Thai court the judge will try to get the two parties to reach a settlement and may even refer the case back to mediation.
The labour court judges are excellent negotiators. They know the law, and they will bend it to strengthen their case. Their aim is to get both parties to settle as quickly as possible, as their bonus is based on settlement. It is not uncommon for the judge to act as judge, prosecutor and negotiator, nor is it uncommon to see at least one of them asleep on the bench.
How much money can you expect to win
The sole reason, in my opinion, to go to the labour court is to be awarded money. And the million dollar question would be how much money you could expect to win.
Let's say you have worked at a school for eighteen months. In this case you could claim one month's notice pay, three months' severance pay, one month's pay for unfair dismissal, interest and whatever else is due to you. Claiming for unfair dismissal, interest, etc gives you some leeway in negotiating a fair settlement. If you have done your homework and stand your ground in court, you should walk away with at least four months' salary less lawyers' fees. Not bad for a couple of hours in court!
There is also a possibility of the defendant paying in installments, but if he or she liquidates, it is basically guaranteed that you will receive your money. The court will issue an attachment order of the defendant's property if he or she fails to comply with the order within seven days of the specified period.
How much will it cost and how long it will take
The lawyer I used normally asks for a deposit of ten to twenty thousand baht, and ten to fifteen percent of the settlement figure. Most cases are settled within three court appearances and on average take three to six months to settle. Both my cases were settled after two court appearances and within three months.
I had the understanding with my lawyer that he would defend me until my case was settled, no matter how many times I would appear in court appearances. That gave me the advantage of knowing beforehand how much it was going to cost and I could settle on the amount I had decided on. The defendant on the other hand had to pay for a lawyer every time they appeared in court and did not know how much it was going to cost her.
Some teachers are concerned that the school will claim money from them if they lose at the labour court. This will not happen. At my last appearance the school had formal documentation claiming money from me. The judge dismissed this, stating that the plaintiff cannot be held responsible for the defendant's costs.
What advice can I give you
My advice to teachers going to the labour court is to be fully prepared by having evidence (letters, emails, recordings, witnesses) and knowing their rights as a foreign employee. It is not easy to get money from Thai employers. Usually the schools and their agents have money, power, connections and can afford the best lawyers. But the schools and their agents have far more to lose than you. A good number of them are hiring illegal teachers, don't offer work permits and might owe thousands, if not millions of baht in tax money.
Any teacher with a reasonable case and sound negotiating skills, should (I can almost say will) receive a fair amount of money. Not something extraordinary though - like claiming a year's wages for unfair dismissal. If you are after that sort of compensation, it is highly unlikely that you will get a lawyer to take your case and equally unlikely that your case will be accepted by the courts.
Where can I find a lawyer?
Finding a reputable lawyer is perhaps the most difficult part. All legal processes, including arbitration, as well as pleadings for submission to judicial bodies, are done in Thai.
I often hear about the clerks of the labour court, and even Thai lawyers looking at a case, but it hardly ever goes to court. I never had any luck with the clerks of the Labour court either. I had been to the Ombudsman of the labour court twice before I got a lawyer. The first time I had to get my contract translated and the second time I had to come back with a translator and more translated documents.
Lawyers might be expensive, but it is usually a case of you get what you pay for. I've had a teacher who got fired by one of Bangkok's biggest agencies, contact me. She got a lawyer (pro bono she tells me) and went to the Labour court to file a claim. They did this twice, and both times they were told that they needed the registered name of the company and some documents translated. The result was that she couldn't file a claim. It took my lawyer's assistant five minutes to do a company registration search and came up with all the company information.
If you need advice on finding the right lawyer, contact me
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I was interested to see you mention in your article that ' I had been to the labour court twice after not being rehired following a non-renewal of contract, and both cases were settled in my favour.' Recently I was not rehired following non-renewal. We took the case to the Labour Court. During the first step (mediation) the Labour court rep said we didn't have a case because under a Thai Ministry of Education rule, foreign teachers in private schools are not entitled to severance upon nonrenewal.
I just can't see how you how you had both cases settled in your favour. Am I missing something here?
By TeacherTeacher, Thailand (8th July 2021)
"In our school we have an agreement with the admin that teachers will sign a letter of intent at the end of February each year and will get an answer by March or end of March if they will be re-hired and offered a contract"
It's not the end of March yet.
By philip, (17th March 2014)
Hi I want to share my situation with you and hope you can help. I am working in an international school in Bangkok since January 1, 2005 up until now. My contract will end this coming May 2014. In our school we have an agreement with the admin that teachers will sign a letter of intent at the end of February each year and will get an answer by March or end of March if they will be re-hired and offered a contract. Up until now nothing was done to inform me if I have a contract or not. I have been talking to the owner and headmaster by only have words not a contract.
My question is what do you think is the best possible option i will take. Can I file a complain in the labor court of unfair labor practice? The reason for my question I have a son in school who is in grade 11 and in no way I can transfer him to another school without causing me with a lot of expenses. Please advise for necessary action.
By Jojo, Bangkok (17th March 2014)