Private school teachers in Thailand occupy a special legal position in the Kingdom due to the provisions of both the Labour Protection Act 2541 (1998) (LPA), and the Private School Act B.E. 2550 (2007) (PSA). Section 4 of the LPA provides for exceptions to certain employers who are not subject to the Act, including those covered under Ministerial Regulations; Section (1) of Ministerial Regulation No. 1 dated 19 August B.E. 2541 (1998) provides for an exception for private school teachers given that it states that “(1) the Labor Protection Act, B.E. 2541 shall not apply to an employer who carries out the private school undertaking under the law on private schools, particularly to headmasters and teachers”. However, section 86 of the PSA while it excludes private school teachers from the direct application of the LPA it requires that they receive employment benefits that are no less favorable than those guaranteed under the LPA. An extract of the relevant wording in Section 86 is provided below:
Section 86 – The affairs of a Formal School only on the part of the Director, teachers and educational personnel shall not be subject to the law on labor protection, the law on labor relations, the law on social security and the law on compensation. However, the Director, teachers and educational personnel of a Formal School shall receive remunerations not less than those prescribed in the law on labor protection.
Working protection, the adoption of Working Protection Committee and the minimum remunerations of the Director, teachers and educational personnel of the Formal Schools shall be in accordance with the rules prescribed by the Private Education Promotion Commission.
This legislative framework has resulted in questions arising relating to the scope and enforcement of teachers’ employment rights, especially their entitlement to severance pay upon termination of employment such as the expiry of fixed term contracts. The issue of severance pay illustrates the challenges of reconciling the specialized regime under the PSA with the general principles of Thai labour law. This article examines the legal framework governing severance pay for private school teachers through an analysis of two judicial decisions interpreting section 86 of the PSA and the relevant regulations.
Supreme Court number 18406 – 18412/2557
Black Case 823-828/2553
Facts
The seven plaintiffs were foreign nationals employed as teachers at an international school operated by the first defendant (a limited company), with the second defendant serving as the school’s licensee and legal representative under the PSAlabour protection. The school was classified as a “school in the system” because it used a foreign or self-developed curriculum and taught in a foreign language.
The defendants employed the plaintiffs under a series of academic-year employment contracts, renewed successively over multiple years without any objection from the plaintiffs. The final contract expired on July 31, 2009, marking the end of the plaintiffs’ employment due to the natural expiration of the contract term, not due to misconduct. Upon termination, the plaintiffs claimed four categories of relief:
- severance pay with 15% annual interest and a 15% surcharge every seven days of default;
- wages for annual vacation leave;
- professional growth compensation; and
- a housing allowance for July 2009.
Labor Court Region 2 dismissed the case in its entirety, and the plaintiffs appealed to the Supreme Court.
The Court’s Reasoning and Opinion
Governing Law for Private School Teachers: The Supreme Court ruled that Sections 4 and 6 of the LPA, read together with the 1998 Ministerial Regulation, exempt private school teachers from general labor protection laws, placing them under the PSA instead. However, Section 86, paragraph one of the Act explicitly dictates that school personnel “must receive benefits no less than those prescribed under labor protection law.” Since the relevant committee had not yet issued new specific regulations, the 1999 Ministry of Education Regulation remained applicable under transitional provisions (Section 166).
Contract Expiration and Severance Pay: The Supreme Court found that Clause 35(2) of the 1999 Ministerial Regulation, which denied severance pay to foreign teachers whose contracts expired, provided a “lesser benefit” than the minimum standard guaranteed to general employees under general labor protection law. This specific clause violated the “no less than” baseline of Section 86, paragraph one, rendering it unenforceable. The plaintiffs were therefore entitled to severance pay under Clauses 32 and 33.
Liability and Surcharges: The first defendant, as a juristic person, was held solely liable for paying the severance with 15% annual interest from the default date (July 31, 2009). The second defendant, acting merely as the legal representative, was not personally liable. Furthermore, the Court rejected the claim for the “15% surcharge every 7 days,” reasoning that the first defendant’s non-payment was based on a good-faith reliance on the existing text of the regulation and did not constitute a willful refusal to pay without reasonable justification.
Annual Vacation Pay: Private school teachers operate under a distinct holiday system, which includes school breaks and days the school orders closed, resulting in only 188 working “Student Days” per academic year. Looking at the total package, teachers do not receive benefits inferior to ordinary employees. The absence of a specific corporate-style annual vacation leave did not violate the Section 86 floor; hence, this claim was dismissed.
Unfair Contract Terms (Professional Growth & Housing Allowance): The Court noted that the plaintiffs knowingly and repeatedly signed and renewed contracts containing clear expiration deadlines for these specific benefits without prior objection. There was no evidence that the school took undue advantage of the teachers. Therefore, the clauses did not constitute unfair contract terms under the Unfair Contract Terms Act B.E. 2540, and the plaintiffs’ rights had lapsed according to the contract.
Supreme Court number 1858/2565
Black Court numberร.13/2564
Facts
The plaintiff had been a kindergarten teacher at the defendant’s private school since 2013, earning a monthly salary of 18,200 Baht. Prior to the incident, she had already received two warnings/suspensions regarding mobile phone use and insubordination. Upon returning to work on June 12, 2018, she submitted a written request for 3 consecutive days of personal leave (June 13–15) to accompany her elderly father (70+) on a trip to visit family in Surat Thani. She left the leave form on a colleague’s desk after working hours and departed immediately without waiting for approval.
The school sent her a message denying the leave request and instructing her to return to work, citing a shortage of teachers. The plaintiff did not check the message and failed to report to work until June 16 (absent for 4 consecutive working days). The school subsequently issued a termination letter for abandonment of duty, code-of-ethics violations, and insubordination, without paying severance or payment in lieu of advance notice.
The Court’s Reasoning and Opinion
Enforceability of Internal School Leave Policies: The plaintiff argued that the school’s internal regulations were invalid because they had not been formally filed with the Office of the Private Education Commission (OPEC) under Sections 18 and 20(4) of the PSA. The Supreme Court rejected this, clarifying that those sections govern the initial licensing of a school, not ongoing internal operational rules. Labor protection matters are governed strictly by Section 86. Since the school had established these rules and the plaintiff was aware of them, the leave policy was legally binding.
Conflict Between School Policy and Ministerial Regulations: The school’s internal rule required personal leave to be submitted at least 3 working days in advance, whereas Clause 25(1) of the 1999 Ministerial Regulation requires only 1 day’s advance notice. The Supreme Court ruled that an internal school regulation cannot impose a “stricter or more burdensome” requirement than the minimum standard set by the Ministerial Regulation. Therefore, the 1-day rule overrode the school policy, making the plaintiff’s June 12 submission for a June 13 leave technically on time.
Abandonment of Duty Without Reasonable Cause: Although the leave request met the statutory timeframe, Clause 4 of the school’s policy dictated that “leave approval is subject to management’s discretion, and taking leave without approval constitutes an unauthorized absence.” This condition did not conflict with the Ministerial Regulation and was fully enforceable. The plaintiff left without waiting for approval. Furthermore, the Court evaluated her reason—taking her father on a casual family visit—and deemed it an ordinary lifestyle matter rather than an urgent family necessity. Thus, she lacked a “reasonable cause” for her absence.
Termination Consequences vs. Severance Eligibility:
Unfair Dismissal Damages and Advance Notice Pay: Failing to report to work for 4 consecutive working days without a valid reason constituted an abandonment of duty under Section 583 of the Civil and Commercial Code. The defendant was entitled to terminate her employment immediately without advance notice, and the dismissal was deemed fair.
Right to Severance Pay: Crucially, while the 4-day absence was enough to justify immediate dismissal, Clause 34 of the 1999 Ministerial Regulation sets a stricter threshold for forfeiting severance rights, requiring a teacher to “abandon duty for at least 7 consecutive working days without reasonable cause.” Because the plaintiff was only absent for 4 days, she did not hit the 7-day forfeiture threshold. The Supreme Court therefore left undisturbed the lower court’s ruling ordering the school to pay her 6 months’ worth of severance (109,200 Baht) based on her 5+ years of service.
The defendant employed the plaintiff, a foreign teacher, as a teaching employee in the defendant’s school from 1997, renewing the contract annually until the final contract for the 2004-2005 academic year. At that time, the Ministry of Education’s regulations on the protection of employment of principals and teachers in private schools, B.E. 2542 (1999), did not contain any provisions prescribing compensation for foreign teachers who left due to the expiration of their contracts. However, while the final contract was still in effect, the Ministry of Education’s regulations on the protection of employment of principals and teachers in private schools (No. 2), B.E. 2547 (2004), were promulgated. Clause 3 of this regulation stipulated the repeal of Clause 35 of the Ministry of Education’s regulations on the protection of employment of principals and teachers in private schools, B.E. 2542 (1999), and replaced it with the following: “Clause 35: Teachers are not entitled to compensation.” Because of the following reasons…(2) Foreign teachers who leave because of the expiration of the contract term according to Section 8, paragraph one…” Therefore, when the employment contract between the plaintiff and the defendant, which is an employment contract according to the Ministry of Education regulations on the protection of the employment of principals and teachers of private schools, B.E. 2542, Section 8, paragraph one, expired in May 2005 and the defendant did not continue to employ the plaintiff, it is a case where the plaintiff left because of the expiration of the contract term according to Section 8, paragraph one, according to the Ministry of Education regulations on the protection of the employment of principals and teachers of private schools, B.E. 2542, Section 35 (2), as amended by the Ministry of Education regulations on the protection of the employment of principals and teachers of private schools (No. 2), B.E. 2547, Section 3, in which the right to receive compensation is a civil right that arises when the teacher’s contract is terminated. When the plaintiff’s teacher’s contract was terminated because of the expiration of the contract term after the said Ministry of Education regulations came into effect, the plaintiff has no right to receive compensation.
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