Failing Probation Employee Needs Prior Notice

Most businesses, big or small, employ people to work for them. To reduce the chance of having employed someone unsuitable, the employer has an agreement with the employee that he/she will have to undergo a probation period or the employer's working rules require the employee to undergo probation.

At the end of the probation period, the employee will be evaluated on whether the employee passed the probation. If the employee passed the probation, he/she can continue to work for the employer.

If the employee failed the probation, the employer will inform the employee on this and he/she cannot continue to work. In most cases, the employee who does not pass probation is legally entitled to a minimum prior notice period on his/hers employment termination. How long is this minimum prior notice period ?

For example: XZZ Company Limited employed Khun A to work for the company as a sales executive. In the employment contract it is stated that there is a 119 days probation period. Wages will be paid to Khun A on a monthly basis.

If XZZ Company Limited decided on September 20, 2008 that Khun A will not pass his probation due to poor work performance. XZZ Company Limited shall notify (written notice) Khun A on this on September 20 and Khun A's last day of employment is October 30, not October 19. Termination must take effect at the following time of wages payment. Under labor laws, this is the minimum prior notice period on termination which XZZ Company Limited must provide to Khun A.

If the XZZ Company Limited thinks that it will be better for the business if the Khun A leaves immediately, then the XZZ must compensate Khun A for all wages which he is entitled to up until his last employment day i.e. October 30 and ask Khun A to leave immediately.

New amendments to the labor protection law have expressly stipulated that a probation period is not an employment contract with a fixed employment period. An employment contract with a fixed employment period would deem that there is no need to provide prior notice on termination. The employment would just end on the last day of the employment period. A probation period is not considered an employment contract with a fixed employment period because if the employee passed the probation, the employee will be able to continue working.

Tip

The employer should provide proper prior notice of termination to the employee (i.e. adhering to the minimum legal requirement). Also, prior to entering into an employment contract with an employee, the employer should consider the contractual conditions carefully. Especially conditions on the nature of work and wages payment.

Written by David Tan. David is a Lecturer of Business Law at Asian University and author of the book "A Primer of Thai Business Law", available online at www.chulabook.com. In Bangkok the book is available at all Kinokuniya and Asiabooks bookstores. Any questions or comments to David should be sent to blas.inter at yahoo.com

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