Tag: employment and labor

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Employment Termination: Navigating Confidentiality Breaches and Fair Practices

The Supreme Court, Decision No. 7189/2562, ruling in a high-profile labor case has shed a spotlight on the intricate interplay between employee confidentiality obligations and fair employment termination practices. The case involved an offshore petroleum company that terminated the employment of a training instructor after allegations of disclosing confidential company information. This decision offers valuable insights and lessons for both employers and employees alike.

Confidentiality Obligations: A Sacrosanct Duty

The court’s ruling reinforced the fundamental principle that employees have a sacrosanct duty to protect their employer’s confidential information and trade secrets. Unauthorized disclosure or mishandling of such sensitive data can constitute grounds for disciplinary action, including termination of employment. This obligation extends beyond the employee’s tenure with the company, underscoring the enduring nature of confidentiality responsibilities.

Defining Confidential Information: A Contextual Approach

The court adopted a contextual approach in defining what constitutes confidential information in this case. It scrutinized the nature of the information disclosed by the plaintiff-employee, specifically the audit reports from a third-party training organization. The court determined that these reports contained sensitive data pertaining to the defendant-company’s operations, training standards, and were protected by a non-disclosure agreement between the company and the third-party organization.

Notably, the agreement between the employer-defendant and the employee-plaintiff explicitly stipulated confidentiality obligations, whereby the plaintiff agreed to safeguard the defendant’s information and data. This agreement underscored the paramount importance the defendant placed on protecting and preserving information related to its business operations.

However, the plaintiff’s submission of the document containing the defendant’s organizational and managerial information, aimed at ensuring the defendant’s training and assessment standards, to the plaintiff’s personal email account raised significant concerns. This action facilitated the potential unauthorized transmission or removal of such information without the defendant’s ability to monitor or track its dissemination.

Consequently, the court viewed the plaintiff’s actions as a breach of duty, constituting dishonest conduct and an unauthorized disclosure of the defendant’s confidential information. This intentional act was deemed to have caused harm to the employer and amounted to a violation of disciplinary regulations governing workplace behavior.

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Fair Termination Practices: Striking the Right Balance

While acknowledging the employer’s right to terminate employment for breaches of confidentiality, the court emphasized the importance of following fair termination procedures. This includes providing proper notice, adhering to labor laws, and ensuring that the termination is not considered unfair, retaliatory, or discriminatory. The court’s decision serves as a reminder that even in cases of confidentiality breaches, employers must exercise due diligence and uphold principles of fairness and equity.

Burden of Proof: A Stringent Standard

In cases of employment termination, the court placed a stringent burden of proof on the employer to demonstrate that the termination was justified and in compliance with applicable laws and regulations. The employer must provide clear and convincing evidence to substantiate the grounds for termination, particularly in cases involving confidentiality breaches, where the consequences for the employee can be severe.

Balancing Interests: A Delicate Equilibrium

The court’s ruling highlights the need to strike a delicate balance between the employer’s legitimate interest in protecting confidential information and trade secrets, and the employee’s right to fair treatment and due process during termination proceedings. This equilibrium ensures that both parties’ interests are safeguarded and that employment relationships are governed by principles of fairness, transparency, and mutual respect.

Confidentiality Policies and Procedures: A Proactive Approach

The court’s decision underscores the importance of employers implementing robust confidentiality policies and procedures. Clear guidelines, training programs, and well-defined consequences for breaches can help prevent confidentiality issues from arising in the first place. Additionally, ensuring that employees understand and acknowledge these policies can strengthen the employer’s position in the event of a dispute.

Employee Responsibilities: Upholding Trust and Integrity

For employees, this case serves as a reminder of the gravity of their confidentiality obligations and the potential consequences of breaching such trust. Employees must exercise utmost care in handling sensitive information and refrain from any unauthorized disclosure or misuse. Maintaining professional integrity and upholding the confidentiality of employer information is not only a legal obligation but also a ethical responsibility.

The Supreme Court’s ruling in this case has far-reaching implications for both employers and employees. It underscores the significance of maintaining confidentiality in the workplace and the potential consequences of breaching such obligations. At the same time, it emphasizes the importance of fair employment practices, adherence to labor laws, and the need for employers to provide due process and proper justification when terminating employees.

As the business landscape evolves, with an increasing emphasis on data protection and trade secret preservation, this ruling serves as a timely reminder for all parties to exercise caution in handling confidential information and to understand their respective rights and responsibilities in the employment relationship. By fostering a culture of trust, transparency, and mutual respect, employers and employees can create a harmonious and legally compliant work environment, where both parties’ interests are protected, and the sanctity of confidentiality is upheld.

Author: Panisa Suwanmatajarn, Managing Partner.

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Increasing Medical Compensation for Employees

Currently, but soon will be modified, if an employee gets injured or becomes ill during/because of the work, the employer is responsible to pay the actual compensation with a capped amount for an employee to have proper and necessary medical treatment.  

The cabinet has recently approved a draft ministerial regulation regarding the medical expenses rates to be paid by employer proposed by the Ministry of Labor.  The draft ministerial regulation is for increasing medical compensation to be in line with changing of economic and social conditions and to help employees access increased medical benefits. It will reduce the trouble and cost burden for employees.  

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The draft ministerial regulation requires employers to increase the rate of healthcare expenses covered by social security from the previous amount of 50,000 baht to 65,000 baht. Furthermore, there are adjustments made to the conditions of the injuries to receive compensation with the maximum amount payable by the employer not exceeding 100,000 baht, from severe head injuries and requiring craniotomy to severe head injuries suffered by employees. This draft ministerial regulation also covers patients with trauma until birth state of unconsciousness or paralysis with high expenses which can be qualified according to this ministerial regulation, such as injuries with the following characteristics or treatment.

  1. Severe injury to the head causing inability to perform daily activities normally for more than 20 days.
  2. In case of severe head injury but may not require surgery or may not be able to do surgery, such as a skull fracture that causes bleeding in the brain.
  3. In case of fall from a height causing multiple broken ribs, a small amount of blood in the chest, slight shortness of breath and/or non-surgical with cerebral hemorrhage but without surgery staying in the Intensive Care Unit (ICU) for 3 nights with abdominal bleeding and no surgery needed.

Author: Panisa Suwanmatajarn, Managing Partner.

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A New Labor Law Established the Rights and Obligations to Work-From-Home

As we are all aware that the working routines of people nowadays have shifted to a new normal of work-from-home arrangements, rendering the Thai Labor Protection Act B.E 2541 (1998) incompatible with how people work today. As a result, on 19 March 2023, the Labor Protection Act (No. 8) B.E. 2566 (2023) (“Act”) was announced in the royal gazette, amending thelabor law, and will be enforced within 30 days from the announcement dates, which will be effective on April 18, 2023, with the objective of being in line with today’s working lifestyle.

Section 23/1 has been added to the Act and it contains 4 significant clauses as follows:

  1. For the benefits of the employer’s business operation and the promotion of employees’ quality of life and work, the employees can work at home, at residence, or anywhere outside the employer’s office conveniently by using information technology or IT.
  2. In order to work remotely, the employer and employee may execute a written or electronic agreement that may include the following clauses:
    1. The term of the agreement;
    2. The working days, normal working hours, and overtimes;
    3. The rules governing overtimes, holiday, working days and types of leave;
    4. Scope of work and the employer’s supervision; and
    5. Obligations of the employer to provide the necessary working tools or equipment and expenses in relation to the performance of the work.
  3. Unless they have given prior written consent, employees have the right to refuse all forms of communication from their employer or supervisor after a working hour or the end of work as assigned by the employer. This Right to Disconnect follows EU legislation beginning with France in 2017 and spreading to Spain, Ireland, and Italy by the end of 2021.
  4. Employees who work remotely have the same rights as those who work at the office, which means that employers cannot change or reduce benefits if employees do not agree to it.

In conclusion, this Act will not only improve employees’ quality of life and work but will also assist in the resolution of traffic issues and the reduction of energy and fuel consumption. All employees who work remotely should be aware of this Act in order to understand their current rights and responsibilities. The employers should also consider drafting work-from-home agreements with the said employees. Please note that there is no provision regarding the penalty for non-compliance with this Section 23/1 because the government currently intends to support work-from-home policies.

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Visa Extension for Foreign Workers

The cabinet has recently approved the guideline for managing foreign working after February 13th, 2023, as proposed by the Ministry of Labor in collaboration with the Ministry of Interior, Ministry of Public health, Royal Thai Police, and Department of Provincial Administration. The guideline below will be applied to foreign workers whose work permits expire on or before February 13th, 2023, by allowing the following foreigners to stay in Thailand as a special case until May 15th, 2023.

1. Foreigners who have completed and submitted an application for a renewal of their work permit and paid for the application fee and renewal work permit fee within February 13th, 2023  and that 1.) those foreigners were granted a visa or permitted to temporarily stay in Thailand until February 13th, 2023 but have not yet applied for a temporary stay in Thailand until 2024 or 2025 or have a gradually expired passport since February 14th, 2023 onwards or 2.) those foreigners who were granted a visa or permitted to temporarily stay in Thailand until February 13th, 2023 and have been granted to stay temporarily in Thailand until 2024 or 2025 or have a passport expired from February 14th, 2023 onwards.

According to the Notification of the Ministry of Labor issued by virtue of Section 14 of the Royal Ordinance on the Management of Foreign Workers Employment B.E. 2560 (2017) and its amendments, foreigners as mentioned above in Item 1 will be allowed to work in Thailand until February 13th, 2024, or 2025 as the right is granted.

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2. Foreigners, who have incompleted but  submitted an application for a renewal of their work permit and paid the application fee within February 13th, 2023 under the circumstances of 1.)  those foreigners do not have a passport or document in lieu of a passport, 2.) those foreigners who have a passport or document in lieu of passport but fail to extend their visa or 3.) those foreigners whose status is not legal but whose employers have applied for their work permits on their behalf and have already paid the fee in the process of biometrics collection prohibited disease diagnosis, will be granted temporary visas until May 15th, 2023. In case they wish to continue working in Thailand, they will be granted temporary visas and work permits until February 13th, 2024 or February 13th, 2025 as the case may be.

3.  Those foreigners, who have passports or documents in lieu of passports and have been granted visas or have permission to temporarily stay in Thailand but passports or documents in lieu of passports expired before February 13th, 2023, will be allowed to temporarily stay and work until February 13th, 2024, or February 13th, 2025, as the case may be.

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On 18 May 2021, the Cabinet approved in principle for the Draft Ministerial Regulation on Social Security Fund Contribution Rates  B.E. …. (“Draft Ministerial Regulation”) proposed by the Ministry of Labour in order to alleviate challenges faced by the insured employees and employers affected following the spread of COVID-19. The Draft Ministerial Regulation will be referred to the Council of State for further considerations. 

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Summaries of the Draft Ministerial Regulation are as follow:

  1. The Draft Ministerial Regulation will repeal the Ministerial Regulation on  Social Security Fund Contribution Rates B.E. 2563 (2020) and the Ministerial Regulation on  Social Security Fund Contribution Rates  (No. 2) B.E. 2564 (2021).
  2. The Draft Ministerial Regulation will set the new rates of contribution to the social security fund which will be in force for 3 months starting from 1 June 2021 to 31 August 2021. The new rates are to be specified as follow:
    • The employers and the insured employees under Section 33 of the Social Security Act B.E. 2533 (1990) will contribute to the social security fund at the rate of 2.5% of the insured employees’ wages. The government’s contribution will remain at the rate of 2.75% of the insured employees’ wages.
    • The contribution for compensation fund related to injury, sickness, disability, death and childbirth will be at the rate of 1% of the insured employees’ wage for insured employees, employers and government.
    • For contribution for benefits to children of the insured employees and old age pension, the contribution rate of the employers and insured employees under Section 33 will be at the rate of 1.25% of the insured employees’ wage; the government’s contribution rate will be at 1.5% of the insured employees’ wage.
    • The contribution for the unemployment fund will be at 0.25% of the insured employees’ wage applied to all insured employees, employers and the government.
  3. From 1st September 2021, the contribution rate will be revised to the new rates as follows:
    • The contribution for compensation fund related to injury, sickness, disability, death and childbirth will be at the rate of 1.5% of the insured employees’ wage for all insured employees, employers and government.
    • For contribution for benefits to children of the insured employees and old age pension, the contribution rate of the employers and insured employees under Section 33 will be at the rate of 3% of the insured employees’ wage; the government’s contribution rate will be at 1% of the insured employees’ wage.
    • The contribution for the unemployment fund will be at 0.5% of the insured employees’ wage applied to all insured employees and employers and the government’s contribution will be at the rate of 0.25%

This Draft Ministerial Regulation is expected to be enacted and become enforced shortly.