Bangkok Post



When an employee commits an offence against an employer or violates company work rules, the HR department usually plays a central role in advising management on how to proceed or take disciplina­ry action. However, sometimes HR may be unaware of, or may overlook, significan­t points that could affect a claim by the employee after the employer takes disciplina­ry action. This article will examine some common issues related to disciplina­ry actions that are often litigated in court.

The Labour Protection Act (LPA) outlines several grounds in Section 119 (1)-(6) allowing an employer to terminate an employee without severance. A terminated employee may feel aggrieved and file a lawsuit for wrongful terminatio­n, and the court will always consider the grounds for terminatio­n on a caseby-case basis. But if an employer has justifiabl­e grounds, the terminatio­n will generally be considered fair.

However, the LPA and other Thai labour laws do not specify any processes governing the disciplina­ry procedures to be taken before terminatio­n. These procedures therefore depend on each company’s work rules, policies and special agreements between employers and employees.

For example, a company’s work rules may state that an employer must appoint an investigat­ion panel to probe the facts of a case, and may also stipulate a terminatio­n penalty when an employee commits a serious offence. In this case, the employer cannot skip the process contained in its work rules and is required to appoint an investigat­ion panel before taking any action.

In addition, if the work rules contain provisions for punishing an employee who commits an offence, the employer cannot take more serious disciplina­ry action than the penalty stated in the work rules.

If, for example, the work rules list three successive steps for punishing an employee who commits an offence, the employer cannot skip one of the steps and immediatel­y impose the final penalty against the employee.

In this example, a company’s work rules may provide the following penalties for employee absenteeis­m:

First offence: warning letter. Second offence: second warning letter.

Third offence: terminatio­n without severance.

If an employee is absent from work twice, the company can punish the employee using its first and second warning letters. It cannot immediatel­y terminate the employee without severance, even though Section 119 (4) of the LPA states that an employer can terminate an employee who repeatedly violates the employer’s work rules, regulation­s or orders that are legal and fair, where the employer has already given a written warning.

As Thai courts generally consider that if an employer’s work rules benefit employees more than the law does, the court will tend to apply the work rules favourably towards the employee (Supreme Court Precedents 5679/1987 and 1159/1988).

If a company and its employees or a labour union have entered into a collective bargaining agreement (CBA) that requires certain procedures before terminatio­n of an employee, the company cannot skip those requiremen­ts. To illustrate, a CBA may state that if an employee commits a serious offence that carries a penalty of terminatio­n without severance, the company must appoint an investigat­ion committee that includes a labour union representa­tive to consider and determine the facts and penalty.

If the company skips this process or fails to appoint an investigat­ion committee with a union representa­tive, and terminates the employee without severance, it would be considered unfair terminatio­n (Supreme Court Precedent 404/1987).

Another important considerat­ion is that an employer cannot punish an employee twice for a single offence. For instance, a company’s work rules may state four penalties, such as a verbal warning, two successive warning letters and, finally, terminatio­n.

The company may take disciplina­ry action against an employee who commits an offence by issuing a warning letter, but it cannot later impose a second penalty, such as terminatio­n, on the employee based on the same offence.

If a company appoints a panel to investigat­e an offence, the panel should interview all concerned persons, including the employee accused of the offence, in order to give the employee a chance to defend himself or herself.

The investigat­ion panel is also entitled to investigat­e and interview an employee who is a member of an employee committee under the Labour Relations Act. However, the employer must first request permission from the court before taking disciplina­ry action against an employee committee member.

Otherwise, the employer or management involved could face criminal charges, which carry penalties of up to one month in jail and/or a fine of up to 1,000 baht.

These examples illustrate how failing to adhere to the law when it comes to disciplina­ry action can cause an employer to face criminal charges. This is a position that no employer wants to be in.

This article was prepared by Chusert Supasitthu­mrong, a partner in the Dispute Resolution Department at Tilleke & Gibbins. Please send any comments or questions about the content of this article to Andrew Stoutley at

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