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Probationary-Period Termination — Notice, Severance, and the 120-Day Trap
Probationary Employee (Plaintiff) v Employer (Defendant)
Composite summary — not a single reported case. This entry distils a settled line of Thai Supreme Court (Dika / ฎีกา) authority for legal education. It is not a transcript of one reported judgment, and the heading is not a citable case number. Do not cite it as specific case law — consult a Thai-qualified lawyer for the authoritative Dika number and current application.
Facts
An employer hired an employee on a written 119-day or 120-day probationary contract, often with a clause stating that 'the employee may be dismissed during probation without notice, severance or cause'. The employer terminated the employee at or near the end of the probation period — typically on the 119th day or the 120th day — and refused to pay severance. The employee sued, arguing that (i) the termination took effect after 120 days of continuous service and thus triggered statutory severance under Section 118 of the Labour Protection Act B.E. 2541 (1998); (ii) absent gross misconduct under Section 119, severance was due; (iii) the termination was unfair under Section 49 of the Establishment of and Procedure for Labour Court Act B.E. 2522 (1979) even if technically lawful.
Legal Issue
Whether the contractual 'no severance during probation' clause defeats statutory severance, how the 120-day threshold is counted, and whether probationary termination can be 'unfair' under Section 49.
Holding
The Supreme Court (Labour Division) has consistently held: (i) statutory severance under Section 118 LPA accrues once the employee has been employed continuously for 120 days or more — the 120-day clock counts every calendar day of the employment relationship including non-working days, weekends, and approved leave; (ii) a contractual term purporting to exclude statutory severance is void to the extent it is less favourable than the LPA, which is a minimum-protection statute (Section 14/1 and related provisions); (iii) advance notice of termination must still comply with Section 17 LPA (one full pay period in advance, with payment in lieu permitted); and (iv) even where statutory severance is technically not yet due, the Labour Court may award damages for 'unfair termination' under Section 49 where the reason given is arbitrary, pretextual, or contrary to good faith.
Reasoning
The Labour Protection Act is a mandatory minimum-standards statute. Section 118 sets the severance tariff with no carve-out for probation. The legislative scheme treats 'probation' as a managerial label, not a legal exclusion from statutory protection. Counting from the first day worked is consistent with the LPA's protective purpose. The Labour Court's broad equitable jurisdiction under Section 49 permits adjustment where strict legality conceals abuse.
Significance
One of the most frequently litigated employment doctrines in Thailand. Foreign-owned businesses regularly draft probationary contracts on the (incorrect) assumption that they mirror US 'at-will' employment. The doctrine catches both the under-120-day termination (timing-dependent) and the 'probationary' label problem (substance over form).
Practical Takeaway
Treat the 120-day mark as a statutory cliff. If terminating during probation, do so by day 119 at the latest AND give advance notice under Section 17 AND keep written contemporaneous records of the performance-based reason. 'No severance during probation' clauses are unenforceable below the statutory floor.
Cited Statutes
- Labour Protection Act B.E. 2541 (1998), Sections 17, 118, 119
- Establishment of and Procedure for Labour Court Act B.E. 2522 (1979), Section 49
- Civil and Commercial Code, Section 582 (notice of termination of employment)
This entry summarises a representative line of authority from the Thai Supreme Court (ฎีกา). It is intended for general legal education only and is not a substitute for advice from a Thai-qualified lawyer. Individual Dika case numbers are being verified against primary sources; until then these entries are presented as composite doctrinal summaries.
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