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Can an Employer Terminate an Employee for Cause Because of Testing Positive for COVID-19?

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Can an Employer Terminate an Employee for Cause Because of Testing Positive for COVID-19?

Although the Thai Government decided to relieve lockdown measures recently, certain areas and provinces are still considered not safe to travel to. Therefore, it is not uncommon at the moment for employers to still encourage their employees to stay at home and avoid travelling to risk areas or being in crowds in order to protect the employee him/herself from catching COVID-19. However, what if an employee does not follow said suggestion from the employee and tests positive for COVID-19 - can the employer terminate the employee without being subject to severance pay on said scenario?

According to the Labour Protection Act B.E. 2541 (1998) (the “LPA”), only the termination of employment for grounds as stipulated under Section 119 of the LPA is not subject to severance pay, as follows:

  • (1) Dishonestly performed his/her duties or intentionally committed a criminal offence against the employer;
  • (2) Deliberately caused damages to the employer;
  • (3) Committed negligent acts which caused the employer to sustain serious damages;
  • (4) Violated the work rules, lawful and fair regulations or orders of the employer, and for which a letter of warning had previously been served within one year, except for a serious case - for which no warning is necessary;
  • (5) Abandoned his/her work for three consecutive days, irrespective of whether or not there were holidays in between, without justifiable reason; and/or
  • (6) Has been sentenced to imprisonment by a final court judgement. However, if it is an offence committed through negligence or a minor offence, it must be a case where it has caused damages to the employer.

Based on the above provision of the LPA, being inflicted with a disease and health condition of a employee are not grounds in which the employer is entitled to terminate his/her employment without being subject to severance pay. Moreover, even if the employer has specified in its work rules that the employee will be terminated without receiving any severance pay upon his/her health issue, or particularly gave an instruction that the employee who tests positive for COVID-19 will be terminated without severance pay, so doing still does not deprive the employee’s right to receive severance pay under the LPA. This is because pursuant to various labour court’s decisions, the provisions of the LPA are considered as relating to public order or good morals and, therefore, cannot be agreed otherwise, unless to do so is more favourable to the employees. Hence, any agreements which are against the LPA will become void and unenforceable; and the provisions of the LPA will apply instead.

In light of this, if it is necessary for the employer to terminate the employee for the mere reason that he/she is tested positive for COVID-19, the employer must pay severance pay in the rate prescribed by the LPA to him/her. Besides, the employer need to consider as to whether or not the employee is entitled to other statutory payments, including the legal issue pertaining to unfair dismissal under the Act of the Establishment of and Procedure for Labour Court Act BE 2522.

This Newsletter is intended merely to provide a regulatory overview and is not intended to be comprehensive; it is NOT a provision of legal advice. Should you have any questions on this or on any other areas of law, please do not hesitate to contact the following:

Chanakarn Boonyasith
Partner

Pitchabsorn Whangruammit
Attorney-at-Law