When an employee commits an offense 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 impact 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 Labor Protection Act (LPA) states 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 employee termination on a case-by-case basis. But if an employer has justifiable grounds, the termination will generally be considered as fair.
However, the LPA and other Thai labor laws do not specify any processes governing the disciplinary procedures 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 investigate case facts, and may also stipulate a termination penalty when an employee commits a serious offense. In this case, the employer cannot skip the process contained in its work rules and is required to appoint an investigation panel as stated in the work rules before taking any action against the employee.
In addition, if the company’s work rules contain provisions for punishing an employee who commits an offense, the employer cannot take more serious disciplinary action against the employee 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 offense, 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:
If an employee is absent from work twice, the company can punish the employee using its first and second warning letters. The company 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 which 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, the court will tend to apply the work rules favorably toward the employee (Supreme Court Precedents 5679/1987 and 1159/1988).
If a company and its employees or a labor 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 offense which carries a penalty of termination without severance, the company must appoint an investigation committee that includes a labor 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 offense. 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 offense by issuing a warning letter, but the company cannot later impose a second penalty, such as termination, on the employee based on the same offense.
If a company appoints a panel to investigate an offense, the panel should interview all concerned persons, including the employee accused of the offense, in order to give the employee a chance to defend themselves.
The investigation panel is also entitled to investigate and interview an employee who is a member of an employee committee under the Labor Relations Act. However, the employer must first request permission from the court prior to taking disciplinary action against an employee committee member. Otherwise, the employer or management involved in the matter could face criminal charges, which carry penalties of imprisonment not exceeding one month, or a fine not exceeding THB 1,000, or both.
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.