Services / Labour and employment
Unfair dismissal and what a court can order
Severance paid in full does not close the matter. Severance follows from the dismissal itself; damages for an unfair dismissal are a separate claim that has to be established on its own.
What the statute says
Section 49 of the Act on Establishment of Labour Courts and Labour Court Procedure B.E. 2522 (1979) provides that where the Labour Court finds a dismissal unfair to the employee, it may order the employer to take the employee back at the wage being paid at the time of dismissal. Where the court takes the view that the two can no longer work together, it fixes damages for the employer to pay instead.
How the court arrives at a figure
Section 49 names five things the court weighs: the employee's age, the length of service, the hardship caused by the dismissal, the reason behind it, and the severance the employee is entitled to. That last factor matters, because it means severance already received does not extinguish the claim; it is one element the court takes into account.
Lawful and fair are two different tests
A dismissal can be lawful, in the sense that every sum owed was paid, and still be unfair, where the reason given carries no real weight or is out of proportion to the consequences for the employee. Equally, a dismissal supported by a solid reason and carried out properly may be fair even though the employee suffers by it. These cases turn on the reason and the evidence, not on the amount that changed hands.
Where the claim goes
A claim for unfair dismissal damages is brought in the Labour Court. It is not something a labour inspector can order, unlike severance and unpaid wages, which may be pursued through the inspector instead. In practice many matters run down both routes at once, and the choice made at the outset shapes the whole case.
PREPARE
What to bring
- The dismissal letter, or the message telling you to leave
- The employment contract and the work rules
- Every written warning you have ever received
- Recent payslips and the record of the final payment
- Appraisals and any correspondence about performance
QUESTIONS
Questions this raises
Can I still sue for unfair dismissal after taking severance?
Yes. They are separate sums resting on different statutes: severance under the Labour Protection Act B.E. 2541 (1998), unfair dismissal damages under section 49 of the Labour Court Act. Take care with whatever you signed on receiving the money, though. A general waiver of all claims becomes a further issue to argue about.
Will the court really order me back to work?
Section 49 gives the court that power, but it also allows the court to award damages instead where it finds the two can no longer work together. In practice, by the time a case has been fought through to judgment the relationship has usually gone too far for a return to be workable.
LAW
The legislation
- Act on Establishment of Labour Courts and Labour Court Procedure B.E. 2522 (1979), section 49
- Labour Protection Act B.E. 2541 (1998)
ENQUIRIES
