Mediation of disputes and the process of filing labor cases.

Labor

Labor cases involve disputes and conflicts between employers and employees that arise from their employment relationship, employment contracts, or rights that employers and employees should rightfully receive. To ensure equality and fairness for both parties, there are labor laws in place, including the Labor Protection Act of 1998 and the Labor Relations Act of 1975. Common issues often encountered in labor cases include unfair termination, which may lead to legal actions filed in provincial courts, the Central Labor Court, and even the Supreme Court. To address these labor issues, the Labor Court and the procedures for adjudicating labor cases were established under the Labor Court and Labor Case Procedure Act of 1979, which has been in effect since May 12, 1979, up to the present day.

Therefore, when there is a violation or non-compliance with any of the rights related to receiving wages, and when an employee has the right to file a complaint against the employer, they can submit the complaint to the labor inspector for an investigation. The labor inspector is required to conduct an inquiry and issue an order within 60 days from the date of receiving the complaint. The labor inspector will notify both parties in writing of the issued order. If an order is issued, both parties must comply with it within 30 days from the date of receiving the order. Failure to comply with the order will result in criminal penalties under the Labor Protection Act of 1998, Section 151, which may include imprisonment for up to 1 year, a fine of up to 20,000 Baht, or both imprisonment and a fine. Once the labor inspector issues an order, if either party is dissatisfied with the order, they have the right to file a case with the labor court. The labor court has the authority to review and revoke the order issued by the labor inspector within 30 days from the date of receiving the order. If either party fails to bring the case to court within the specified time frame, the order is considered final.

Mediation or dispute resolution is a suitable and fair way to address labor disputes, saving time and legal expenses for both parties. It aligns with the intention of labor courts to reduce conflicts and foster good relationships between employers and employees, as per the principle that “labor disputes have a special nature that should be resolved amicably.” Mediation can occur both within and outside the court system and can be initiated before or during legal proceedings.

1. Out-of-court dispute resolution is a process in which parties involved in a dispute seek to resolve the issues before filing a lawsuit in court. Even if a lawsuit has already been filed in court, the parties can still engage in out-of-court dispute resolution on their own, without the need for court proceedings. This process allows the parties to negotiate and reach a resolution without the formalities and expenses associated with litigation.

2. Mediation in court is the process of resolving a dispute or case that is currently under the consideration of a court. The court takes an active role in facilitating the mediation process. If the parties involved in the case reach an agreement through mediation, a settlement agreement is made, and the court issues a judgment based on the terms of the agreement. However, there may be exceptions to this process in certain circumstances.

2.1 Pre-litigation dispute resolution refers to the process of resolving disputes related to labor matters within the jurisdiction of the Central Labor Court before a case is formally filed. This involves the party initiating the dispute submitting a request to the Labor Dispute Resolution Center before initiating a lawsuit. The responsible authorities will inform the opposing party of the dispute, which may be done through telephone, fax, or mail, in order to schedule negotiations between the two parties. It’s important to note that pre-litigation dispute resolution must take place within the jurisdiction of the Central Labor Court. If the opposing party refuses to engage in the dispute resolution process and prefers to proceed with litigation, the case may be filed accordingly.

2.1.1 Under what circumstances can pre-litigation dispute resolution be considered concluded?

• Both parties can suspend their dispute by entering into a compromise agreement.
• The dispute has already been filed as a case in court.
• If one of the parties withdraws from the mediation process within the specified timeframe, that party is considered to have withdrawn from the process.
• If a timeframe for mediation has been set and it is not possible to successfully mediate within that timeframe,
• The party mediating believes that the dispute cannot be resolved through mediation,

2.2 Mediation of disputes after filing or during case consideration is when a case has been filed with the labor court. On the first scheduled hearing date, if both the plaintiff and defendant are present together, the labor court may mediate to reach an agreement or mutual compromise. If either party requests it or if the labor court deems it appropriate, the mediation process can be conducted in private, only in the presence of the parties involved. In cases where mediation has been attempted but the parties cannot reach an agreement or compromise, the labor court will proceed with the adjudication process.

Filing a labor case

The prosecutor can do it in two ways, either by filing a written complaint or by making an oral statement in front of the court. In cases where there are multiple prosecutors, the court may appoint one of them to represent the case.

When the parties cannot reach an agreement or cannot reconcile, the labor court will record the points of dispute and take statements from the prosecutor and the defendant for the parties to listen to and sign. The court will also specify details regarding which party will present evidence first or last and proceed with the further consideration.

When considering labor cases, the labor court will take into account the working conditions, living conditions, wage levels, rights, and other benefits of the employees working in the same type of business, as well as the employer’s business situation, economic and societal conditions in general, in order to make a fair decision for both parties. In cases of termination of employment by the employer, if the labor court finds that the termination is unfair to the employee, the court may order the employer to reinstate the employee to work at the same wage rate as when the termination occurred. If it is found that the employee and the employer cannot work together anymore, the labor court may determine the amount of compensation to be paid by the employer. The court will take into account the employee’s age, length of service, distress caused by the termination, the reasons for the termination, and the compensation the employee is entitled to. Once the necessary evidence has been presented, the parties’ ability to make oral statements to conclude the case is allowed. The court will issue its judgment or order within 30 days from that day. If, before the labor court reads the judgment or order, the court deems it necessary for the interests of justice, the labor court may further consider the case.

Objection and Procedure

Challenging a judgment or order of the Labor Court is allowed only on legal grounds and must be filed with the Appellate Labor Court. The objection must be submitted in writing to the Labor Court within 15 days from the date of reading the judgment or order. The Labor Court should then provide a copy of the objection to the other party, who has 7 days from receiving the objection to respond. Once the objection has been resolved or if no objection is filed within the specified time frame, the Labor Court should promptly forward the case records to the Appellate Labor Court for special labor cases.

Compensation that an employee is entitled to receive when terminated unfairly can be divided into two parts:

1. The compensation when terminated in general cases, including terminations due to the COVID-19 pandemic

• If the employee has worked for less than 120 days, the employer may not pay compensation.

• If an employee has worked continuously for 120 days but less than one year, the employer must pay severance not less than the last 30 days’ wages or not less than the wages for the last 30 days of work, whichever is higher.

• If an employee has worked continuously for one year but less than three years, the employer must pay severance not less than the last 90 days’ wages or not less than the wages for the last 90 days of work, whichever is higher.

• If an employee has worked continuously for three years but less than six years, the employer must pay severance not less than the last 180 days’ wages or not less than the wages for the last 180 days of work, whichever is higher.

• If an employee has worked continuously for six years but less than ten years, the employer must pay severance not less than the last 240 days’ wages or not less than the wages for the last 240 days of work, whichever is higher.

• If an employee has worked continuously for ten years or more, the employer must pay severance not less than the last 300 days’ wages or not less than the wages for the last 300 days of work, whichever is higher.

• If an employee has worked continuously for twenty years or more, the employer must pay severance not less than the last 400 days’ wages or not less than the wages for the last 400 days of work, whichever is higher.

2. The damages for failure to give advance notice

This damage occurs when the employer “terminates” immediately without providing 30 – 60 days advance notice, as it is considered a breach of the employment contract. In addition to paying compensation in the case of general termination as per item 1, the employer is also required to pay damages for failure to provide advance notice, as per Section 17/1. The amount of damages is equal to the wages at the last rate received by the employee, calculated as if the employer had provided advance notice for preparation before termination. However, this maximum damage amount does not exceed the wages for three months.

In addition to the compensation received from the employer, there may also be compensation from social security in the event of unemployment or termination.

In the case where the employer terminates employment without paying compensation

1. The employee voluntarily applied for resignation.

2. The employee acts dishonestly towards their duties or intentionally commits a criminal offense against the employer.

Intentionally causing harm to the employer.

4. The employee engages in severe misconduct, causing harm to the employer.

5. The employee violates work rules, regulations, or legally sanctioned orders, and the employer has issued a written warning to the employee, except in cases of severe misconduct where the employer is not required to issue a warning (the written warning is valid for 1 year from the date of the employee’s misconduct).

6. The employee has abandoned their duties continuously for 3 consecutive working days without reasonable cause, regardless of whether there are intervening holidays or not.

7. The employee has been sentenced to imprisonment to the maximum extent of the law, except in cases of intentional misconduct or non-criminal offenses.

8. Termination of employment with a fixed-term contract at the specified time.