This is the first of a series of articles about the Thai labour law and the labour courts and how foreigners, especially teachers in Thailand are affected by them. As a teacher, I have been to the Thai labour court twice and in both cases had a settlement awarded to me. I have also been to the labour court in South Africa as an employer several times. I have never lost a court case.
There is a lot of misunderstanding about the Thai labour law, the labour court and teachers' rights in Thailand. In this article I will outline the aspects of the Thai labour law concerning teachers in Thailand as covered by the Labour Protection Act, B.E. 2541 (1998), as well as the Foreign Employment Act. I will cover the controversial fixed period contract, dismissal, sick and maternity leave, penalties for working without a work permit, deductions and issues that the Thai law doesn't address, as well as the penalties for working illegally.
This article is factual and I will often refer to the various Acts and Articles of the law. In subsequent articles I will address issues that are close to every teacher's heart. I will then be looking at how the labour court works and how to win a case, how to find a lawyer, how much it will cost and how much will you win; the rights of teachers, especially those paid per hour teachers working at language schools like Inlingua, ECC, Cambridge etc. I will explain their right to leave, sick pay and overtime.
The Employment Contract
There is no requirement in Thailand for a contract of employment to be in writing. However, when contract of is in writing, the employer should give the employee a copy after it has been signed.
Section 17 of the Labour Protection Act states that a contract expires when the specified period in the contract expires. Moreover, the employer does not have to give the employee any advance notice. When there is no contract period, the employer must give advance notice at or before any time of payment. In the case of teachers, it will normally be one month.
However, and this is very important, Section 17 should be read in conjunction with Section 118 which states that employment of a fixed duration exists in only in special cases. This might be a special project, temporary and/or seasonal work, or the work has to be completed within a 2 year period. Furthermore, the employer and employee have to enter into a written agreement at or prior to commencement of employment (not after employment has commenced).
I think Section 118 makes it clear that working as a teacher could be seen as ongoing employment, even when teachers have been entered into a contract with a specific period. I have challenged not renewing a fixed term contract twice in court and in both instances I received a settlement. However, in the case of instant dismissal due to gross misconduct* or when you have been through the employers disciplinary procedures of verbal and written warnings, you are not entitled to any notice or severance pay. Gross misconduct and termination of employment for not following employers' rules are grey areas and I will follow it up in an article on unfair and constructive dismissal.
Severance pay varies from one to ten months, depending on how long the employee has worked. Here is a comprehensive list:
Length of service Severance payment
120 days but less than 1 year = 30 days at the last wage rate
1 year but less than 3 years = 90 days at the last wage rate
3 years but less than 6 years = 180 days at the last wage rate
6 years but less than 10 years = 240 days at the last wage rate
10 or more years = 300 days at the last wage
An employee is entitled to 6 days annual leave and 13 Thai national holidays. This will include labour day 1st of May. An employee is also entitled to thirty days sick leave a year. If sick leave is for more than two days, a medical certificate has to be produced. Days taken as sick leave due to injury at work or maternity leave are not calculated as sick leave. Maternity leave of up to 45 days may be taken.
In the case of sick leave and maternity leave, the employee is entitled to their normal pay. An interesting note here: Contrary to popular believe, if sick leave falls before or after the weekend, then it is still two days to produce a medical certificate, not one. And even more interesting, if not bizarre, the laws stipulates that, if the employee cannot produce a medical certificate, he must give an explanation.
An employee is entitled to leave to take care of personal business. However, this will be unpaid leave.
An employer is not allowed to make any deductions from the basic salary or overtime pay except for income tax, contributions to a labour union, a welfare fund or payments of debt, as well as compensation paid to an employer due to a willful act or gross negligence of the employee, provided that the employee consents in writing.
Deductions in each case cannot be more than 10 percent of, and in total not more than a fifth of the employee's salary, unless the employee consents in writing.
An employer may instantly terminate an employee, without notice or severance pay in the case of gross misconduct. The following is a brief outline of acts that may lead to instant dismissal:
• commits a criminal act against the employer
• intentionally causes the employer to suffer severe losses
• performs an act of gross negligence which causes the employer to suffer severe losses
• violates the lawful and just work rules or regulations
• is absent from work without a justifiable reason for 3 consecutive working days
• imprisoned by a final judgment
However, it is not all black and white and employees stand a good chance of having ruled in their favour when they challenge a dismissal on grounds of gross misconduct. I will discuss some of these issues in one of my next articles.
Other Workers Rights
• An employee who suffers injury or illness in the course of employment is entitled to be reimbursed for medical treatment, funeral expenses (if applicable), and compensation.
• Under the Workmen's Compensation Fund Act, employers are required to register all employees with the Workmen's Compensation Fund.
• The employer is not obliged to pay compensation to employees who intentionally inflict injury upon themselves or others, or (and this is very interesting) if such employee was injured as a result of his own intoxication beyond limits of self-control.
• Equal pay for men and women who perform equal work. Male and female employees should be treated equally.
• The law forbids termination on the grounds of pregnancy.
• The law forbids sexual harassment by management and inspectors against female workers and children.
The Alien Act
The Alien Act stipulates that no person is allowed to employ an alien without a work permit that indicates the place and nature of work. If the employee is violating the conditions of his work permit, the employer could face a fine up to ten thousand baht. And if the alien has no work permit the employer could face a fine of ten thousand to hundred thousand baht per alien. However, an alien working with a work permit might face a fine of up to five years in jail, or a fine ranging from two thousand to a hundred thousand baht, or both! No one has ever said that life is fair.
What the Thai law doesn't address
Compared to some western models, the Thai law does not address quite a number of issues. Here are some:
No probation period is stipulated, and an employee has no recourse for dismissal within the first 120 days (four months) of employment.
Part-time work versus full time work
In general, normal working hours cannot exceed 8 hours per day or 48 hours a week. The Thai law permits a six day work week. There is no stipulation on the minimum hours for full time work.
An employer may dismiss an employee for no reason and only has to give thirty days' notice, or notice pay in lieu thereof, as well as pay severance pay (as discussed above). An employee does not need to give any such notice.
Unfair and Constructive Dismissal
Other grey areas include unfair and constructive dismissal. An employee can claim for unfair dismissal if the employer did not follow the correct procedure for dismissal or did not dismiss the employee for just cause. An employee can claim for depending on the circumstances and time served.
Constructive dismissal is when the employer is taking steps forcing the employee to resign. This can be in the form of a change in working conditions, deductions, harassment, etc.
I will have a look at unfair and constructive dismissal, as well as the compensation the courts can award in one of my next articles.