Drafting an Employment Contract in Thailand
When drafting an employment contract, it is imperative to retain the services of a trained legal professional, rather than resorting to a template, such as one found online. An important consideration is that employment contracts are ultimately abstract legal rules and the application of those rules in real-life situations may lead to certain results that were not originally expected. This consideration is particularly more important when one considers that labor and employment laws in Thailand are particularly complex, being a web of legislation, administrative regulations, and labor court rulings. One particularly important consideration is that the existence of a valid employment contract involves as much the circumstances of the case as it does the words written in the physical contract itself. Consider the following situations below.
In a situation in which an employer wishes to sue an employee for violating an employment contract, the Labor Court may actually rule that an employment contract never existed. Such a ruling may occur in a case where the employer does not specify the essentials of an employment contract, such as the place of employment, the work hours, weekly holidays, and penalties for breach of contract. Even if the employer were to have the employee registered as one, it may be held that no employment contract actually exists where it cannot be established that the employer has a position of authority and supervision over the employee.
Furthermore, there are situations where it may have to be differentiated as to whether an employment contract is not actually a hire of work contract, which are legally two separate things. One example is a situation where a restaurant hires a singer to perform daily at its establishment. In such a situation, the “employer” or the restaurant is more often considered with getting a specific result; that is, a singer to perform and provide atmosphere to the customers. It is not necessarily the case that the restaurant requires to hire any certain singer specifically. Therefore, in such a case, the courts are likely to hold that such an agreement is a hire of work contract. In any case, whether or not the contract between the restaurant and singer will actually be considered an employment contract will depend on the facts of the case. If the terms of the agreement do not specify the annual holidays or paid sick leave, as is common in most employment contracts, then the Labor Court would likely hold that such a contract is not an employment contract.
Thai employment laws are complex. As stated earlier when drafting an employment contract, it is important to use the services of a Thailand Lawyer to help you draft and review the terms of the contract.
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