While most employers understand what “unfair termination” means, many may be unfamiliar with the term “unfair labour practice” and what it entails. The Labour Relations Act (LRA) gives three general categories of conduct considered to be unfair labour practices: retaliation, wrongful pressure, and termination while under collective bargaining agreements.
Retaliation
Actions deemed retaliation are prohibited. These include the following scenarios:
- Termination or doing anything that results in employees, employee representatives, or committee members of labour unions or labour federations being no longer able to work with the employer while the labour union or employees take steps to prepare petitions, submit labour demands, or sue or give evidence to officers under labour protection laws.
- Termination or doing anything that results in the employee no longer able to work with the employer because of labour union membership.
- Hindering employees from holding labour union membership or asking employees to resign from union membership.
- Giving (or promising) money or property to employees either to not apply or to resign from union membership; also prohibited are such gifts or promises to a labour union officer to not accept employee membership applications.
- Hindering a labour union or labour federation from conducting activities, or hindering employees from exercising their rights as union members.
- Interfering in a labour union’s or labour federation’s activities without legal authority.
Wrongful pressure
An example of wrongful pressure would be an employer directly or indirectly forcing an employee to be a union member or resign from union membership. The concept of wrongful pressure can also be connected to issues of retaliation—that is, doing anything that leads to the employer committing one of the actions detailed in the previous section.
Termination under collective bargaining agreements
While a collective bargaining agreement (CBA) between employees or a labour union and employers is in effect, the employer is prohibited from terminating anyone who is involved with labour demands. This includes employees, labour union committee and sub-committee members, employee representatives, and committee and sub-committee members of labour federations. However, exceptions to this rule exist if an employee commits one of the following offenses:
- Performs duties dishonestly or intentionally commits a criminal offence against the employer.
- Intentionally causes serious damage against the employer.
- Through negligence causes serious damage against the employer.
- Violates work rules or regulations, or disobeys orders that are legal and fair, despite having already been given a written warning by the employer (though the written warning requirement is waived for serious matters).
- Abandons his or her duties for a period of three consecutive work days without reasonable cause.
- Acts in any manner that supports or induces violation of a CBA or an order of a labour dispute arbitrator.
If an employer has need to terminate an employee for reasons other than the grounds listed above, the employer can terminate the employee even while the CBA is in effect. For example, if an employer suffers losses and cannot operate the business of a particular department, the termination is not an unfair labour practice (in fact, this very issue came up in a case before the Supreme Court in 2005). Another example—which again has been at issue in a case before the Supreme Court—would be the termination of an employee who has health problems and takes too many sick days in a year. In this situation, terminating the employee while the CBA is in effect is also not considered an unfair labour practice.
Procedural requirements
If anyone commits an unfair labour practice, the aggrieved person can submit a complaint to the Labour Relations Committee (LRC) within 60 days from the date of the violation. The LRC then needs to consider the complaint and issue an order within 90 days of receiving it. This step is crucial – if a person submits a petition to the labour court accusing another party of committing an unfair labour practice without having first proceeded with the LRC, the court must dismiss the petition.
The LRC will investigate the facts and evidence from both parties and will then issue an order – either dismissing the complaint (if they believe the accusation is not true) or ordering the employer to take action to rectify or make amends for the unfair labour practice. This often takes the form of forcing an employer to reinstate a terminated employee or compensate the employee or concerned persons.
If a violator does not comply with an LRC order within a deadline stated by LRC, the violator will face criminal penalties such as imprisonment for up to six months, a fine of up to THB 10,000, or both.
In addition, if the LRC finds that an employer committed an unfair labour practice, and also orders the employer to reinstate the employee, the employer can petition the labour court to revoke the LRC’s order. However, if the court considers that the employer committed an unfair labour practice and the employee can no longer work with the employer, the court may order the employer to pay compensation to the employee instead of reinstatement.
Author: Chusert Supasitthumrong, a partner in the Dispute Resolution Department at Tilleke & Gibbins in Bangkok. Please send any comments or questions about the content of this article to Andrew Stoutley at andrew.s@tilleke.com.
Series Editor: Christopher F. Bruton, Executive Director, Dataconsult Ltd, chris@dataconsult.co.th. Dataconsult’s Thailand Regional Forum provides seminars and extensive documentation to update business on future trends in Thailand and in the Mekong Region.