Employee Termination using Section 119 of the Labour Protection Act (B.E. 2541)

Section 119 of the Labour Protection Act (B.E. 2541) permits an employer to terminate an employee without the need to pay severance pay (in accordance with section 118) if the termination is based on any of the following conditions:

(1) The employee has performed their duty dishonestly or intentionally committing a criminal offence against the employer;

(2) The employee has willfully caused damage to the employer;

(3)The employee has committed negligent acts causing serious damage to the employer;

(4) The employee has violated the employer’s work rule, regulation or orders which are lawful and just, and after a written warning has been given by the employer, except for a serious case where there is no requirement for the Employer to give warning. The written warning given by the employer is valid for a period not exceeding one year from the date when the employee committed the offence;

(5) The employee has been absent from their duty without justifiable reason for three consecutive working days regardless of whether there is a holiday in between;

(6) If the employee has being sentenced to imprisonment by a final court judgment, provided that if the term of imprisonment is for an offence relating to negligence or a petty offense, it must be an offense causing damage to the employer.

This article shall examine various cases which give practical guidance on using some of the above reasons to justify an employee’s termination. The following cases also provide advice on what factors and actions can result in the Thai courts ordering an employer to pay severance pay to an employee for terminations based on the above reasons.

Termination due to violation of the employer’s work rule, regulation or orders which are lawful and just, and after a written warning has been given by the employer – Section 119(4)

Case Number: 9774/2558

Facts: On June 8, 2553, the Defendant (employer) issued the Plaintiff (employee) with a warning letter, which stated that the Plaintiff had breached the work regulations by violating the supervisor’s orders and disrespecting his supervisor. Thereafter, the Defendant issued the Plaintiff with a second warning letter which stated that the Plaintiff had neglected his duties and lied to the Defendant when he falsely claimed that his work assignment was completed.

The Defendant subsequently terminated the Plaintiff by virtue of Section 119(4) of the Labor Protection Act (B.E. 2541) by contending that the Plaintiff had offended on 2 occasions and that the Defendant had issued him with 2 separate warning letters.

Supreme Court Judgement: The Supreme Court determined that the first warning letter related to the Plaintiff violating the supervisor’s orders and that the second warning letter related to lying and neglecting his work duties. The Court ruled that even though the Defendant had issued two warning letters to the Plaintiff, such termination using section 119(4) was wrong given that the reasons used in the two warning letters were different and not for the same type of offence. Therefore, the Court ruled that the Defendant must pay severance pay to the Plaintiff.

Case Number: 3657/2557

Facts: The Defendant (employer) issued warning letters to the Plaintiff (employee) on February 14, 2548, and July 5, 2548, because the Plaintiff had neglected to repair a work computer and to keep the fitness room clean. Thereafter, on August 18, 2548, the Defendant issued the Plaintiff with a third warning letter because he had neglected to carry out his supervisor’s order to make a sign prohibiting those under 16 years of age from using the fitness room.

Supreme Court Judgement: The Court held that even though the three separate violations by the Plaintiff of their supervisor’s orders (as provided in the warning letters) were different in details, the said violations were deemed as the offence of infringing the supervisor’s orders. Hence, the Court held that the Defendant’s termination of the Plaintiff based on repeating the same offence as mentioned in the earlier warning letters using section 119(4) was justified and as such the Defendant was not required to pay severance pay to the Plaintiff.

Case Number: 3771/2564

Facts: The Plaintiff employed the second Defendant as the Manager of the Occupational Health, Safety and Environment Department from October 28, 2014. Shortly after commencing his employment, the second Defendant faced work-related issues. On May 15, 2015, the second Defendant received his first written warning for losing an oxygen mask (which was the property of the Plaintiff) thereby violating the company’s work regulations. Subsequently, in May 2015, the second Defendant demonstrated a lack of responsibility in managing an oil tank cleaning project, which resulted in the client making a complaint and losing trust in the Plaintiff’s operations. Consequently, the Plaintiff issued the second Defendant with a second written warning on June 18, 2015, after he continued to repeat the misconduct, and he was also ordered to provide compensation for the damage caused. Thereafter on March 16, 2016, the Plaintiff terminated the second Defendant’s employment, citing a lack of coordination in the field and failure to follow waste transportation procedures, which caused significant problems with clients and resulted in substantial damage to the Plaintiff.

Supreme Court Judgement: The Labor Court Region 2 ruled that the second Defendant had repeatedly committed misconduct within a year, thereby granting the Plaintiff the right to terminate his employment without severance pay according to Section 119(4) of the Labor Protection Act. The Labor Court, relied upon evidence and witness testimony, when it concluded that the second Defendant’s actions constituted repeated violations and that previous warnings had already been issued to correct the behavior, but the second Defendant did not rectify his conduct. The Court of Appeal held that the termination of the second Defendant was a duplicate punishment in conjunction with the prior warnings issued and as such the Plaintiff was required to pay severance compensation to the second Defendant. The Court of Appeal determined that the second warning was disciplinary punishment, and that termination was an additional penalty for the same misconduct. The case was appealed to the Supreme Court which examined the matter and concluded that the written warning dated May 15, 2015, did not explicitly state that it was a disciplinary punishment, therefore, it did not constitute a lawful warning. The Supreme Court upheld that the Plaintiff was entitled to terminate the second Defendant’s employment without severance pay due to his repeated misconduct. The Supreme Court held that warnings lacking explicit disciplinary terms are not recognized as lawful punishments, and that the repeated violations within a year as per the company’s work regulations, authorized the Plaintiff to terminate the second Defendant’s employment without severance pay.

Termination due to absence from duty for 3 consecutive days without reasonable cause – Section 119(5)

Case Number: 194/2530

Facts: On May 8, 2529, the Plaintiff (employee) was absent from her work because she had to look after her child, who was sick. On May 9-10, 2529 the employee was absent from her work because there was heavy rain in Bangkok and as such, many roads including the road that the Plaintiff had to use to go to work, were flooded and damaged. Given the above, the Defendant (employer) terminated the Plaintiff without paying severance pay by contending that the Plaintiff was absent from her work for 3 consecutive days without justifiable reason i.e. the Defendant used section 119(5) of the Labor Protection Act (B.E. 2541) to justify the termination without severance pay.

Supreme Court Judgement: The Court noted that the Defendant can only terminate the Plaintiff without paying severance pay under section 119(5) of the Labor Protection Act (B.E. 2541) if the employee is absent for 3 consecutive days without reasonable cause. In this case, the Court held that the Plaintiff’s absence from work was because her child was sick coupled with the fact that there was significant flooding in Bangkok. Therefore, the Court ruled that the Plaintiff’s absence for 3 consecutive days was reasonable and as such it decided that the Defendant must pay severance pay to the Plaintiff.

Case Number: 5107/2561

Facts: The Plaintiff (employee) alleged that after completing his duties in Vietnam, he requested leave to return to Thailand so that he could look after his sick father. Subsequently, on October 19, 2558, the Plaintiff received a termination letter from his employer (the Defendant), citing that the Plaintiff was absent from his work for more than three days and for failing to follow his supervisor’s orders, thereby resulting in the Defendant suffering damage.

The Plaintiff claimed that his termination was unfair and without any fault on his part. The Plaintiff sued the Defendant and requested that it pay severance pay, compensation for wages in lieu of advance notice, damages for unfair termination, and severance pay of no less than 180 days’ wages based on the Plaintiff’s final wage rate, holiday pay, overtime pay on holidays, and unpaid wages, with interest counting from the date of filing until fully paid to the Plaintiff.

The Defendant testified that while the Plaintiff was working in Vietnam on October 6, 2558 he requested leave so that he could travel back to Thailand to look after of his sick father, however the Defendant didn’t approve the Plaintiff’s leave request because at that time, the work which had been assigned to the Plaintiff by the Defendant had not yet been completed. Moreover, the Defendant also contended that the Plaintiff had just taken leave and the Plaintiff’s father’s illness was not serious. The Defendant also testified that when the Plaintiff failed to comply with the Defendant’s order by going to Thailand without permission it resulted in the Defendant suffering damage because it had to hire an outsource engineer to complete the work. The Defendant argued that Plaintiff had neglected his duties for 4 days from October, 8, 2558 to October, 13, 2558 and that the Plaintiff’s actions constituted a serious offense which justified it terminating the Plaintiff without any damages or severance pay.

Supreme Court Judgement: The Labor Court of Region 4 ruled to dismiss the case. The Plaintiff then appealed to the Supreme Court, which examined the case and determined that the Defendant employed the Plaintiff to work in Vietnam. Despite the fact that the Defendant’s leave policy was not clearly defined, the Court held that the Defendant could grant the Plaintiff leave only after the completion of the assigned project and that the Defendant would determine the timing of the leave. The Plaintiff’s termination was due to his travel back to Thailand on October 8, 2015, claiming he needed to care for his father. However, the Defendant did not approve this absence as the work was not yet finished. Considering the father’s condition—requiring ongoing physical therapy but otherwise stable—the Supreme Court found that the Plaintiff’s absence was not urgent or justified, particularly since the project was incomplete. Therefore, the Supreme Court held that the Plaintiff’s unauthorized absence from October 8-13, 2015, constituted more than three days of absence without justifiable reason and thus the Defendant’s termination of the Plaintiff was fair. Additionally, while the Plaintiff had the ability to set his own work schedule, there was no evidence he had previously requested overtime pay; he only claimed it in this lawsuit. Therefore, the Court found no agreement on overtime or holiday work, and since the Plaintiff had already received his outstanding wages, there was no need for further adjudication on that matter.

Termination due to Employee being sentenced to imprisonment by a Final Court Judgment – Section 119(6)

Case Number: 2909/2524

Facts: The Defendant (employer) terminated the Plaintiff (employee), citing that he didn’t disclose the fact that he was previously imprisoned, which the Defendant argued could cause damage to it because during the job application process, the Defendant offered the Plaintiff the position of cashier which required that the applicant must not have been imprisoned.

The Labor Court ruled that the Plaintiff didn’t intentionally conceal his imprisonment from the Defendant and that the Defendant did not suffer damage therefrom. Hence, the Labour Court ordered that the Defendant must give severance pay to the Plaintiff.

Supreme Court Judgement: The Supreme Court agreed with the rulings of the First Labor Court and the Appeal Court which held that the Plaintiff didn’t intentionally conceal his previous imprisonment, that the Defendant did not suffer damage from the Plaintiff’s actions and that the Defendant must pay severance pay to the Plaintiff.

With respect to the Defendant’s argument that the Plaintiff had previously been sentenced to imprisonment by a court’s final judgment, thus permitting the Defendant to terminate the Plaintiff’s employment without having to pay compensation in accordance with article 47(6) of the announcement of the Ministry of Interior regarding Labor Protection. The Supreme Court held that article 47(6) of the said announcement referred to an employee being punished by imprisonment under a final court judgment whilst being an employee. The Court ruled that previously served terms of imprisonment cannot be used to justify termination of an employee without severance pay using section 119(6) of the Labour Protection Act. In this case, the Supreme Court noted that the Plaintiff became an employee after his release from a prison, hence the termination without severance pay did not fall under Section 119(6) and as such the Defendant must pay severance pay to the Plaintiff.

In its judgment, the Supreme Court noted that for a termination under Section 119(6) of the Labour Protection Act, an employer can only terminate without severance pay if the employee (whilst employed) is subject to imprisonment based on a final judgment, which means the judgement is final and not subject to a further appeal or without the right to appeal.

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