The major legislation governing labor protection law in Thailand is the Labor Protection Act (the “LPA”). The LPA prescribes labor protection standards applicable to both employers and employees working in Thailand. However, it does not apply to government and state enterprise employees.
In our last article, we discussed employee termination and noted that the LPA distinguishes between termination “for cause” and termination “without cause” for an employee contracted to work for an indefinite period. Where such an employee has worked for at least 120 days and is then terminated without cause, the employer is liable to pay severance compensation ranging from thirty to three hundred days of that employee’s most recent wages.
We also outlined the six qualifying “for cause” reasons under the LPA, one of which applies where an employee “violates the lawful and just work rules, regulations, or orders of the employer, after receiving written warning from the employer” — with such a warning remaining valid for only one year.
But what qualifies as a “written warning”? Must the employee acknowledge or sign it? The LPA does not detail this requirement beyond specifying that it be in writing. However, the Thai Supreme Court has helped clarify the question, holding that any of the following methods satisfy the written warning requirement:
a. The employee signs the written warning;
b. The employer reads the written warning to the employee, with a third-party witness signing the warning;
c. The warning is posted in a conspicuous place at the workplace where everyone can see it; or
d. The written warning is sent to the employee’s address by registered mail.
It should be emphasized, however, that an employer cannot “go back in time” with a written warning. In other words, an employer cannot become aware of an employee’s misconduct and only later issue a written warning regarding that same incident.
Where an employer has done so, the Thai Supreme Court has interpreted the employer’s failure to issue the warning promptly as implied consent to the conduct. An employer must therefore issue any such warning as soon as the offending conduct occurs — ideally immediately afterward. Otherwise, even a repetition of that same conduct within the following year will not constitute grounds for termination “for cause.”
Note: an employer who violates or fails to comply with the LPA may be punished, depending on the severity of the offense, with a fine of THB 5,000 to THB 200,000, imprisonment of up to one year, or both.