Mutual separation or early retirement is contract termination or resignation?

2012-09-28 14:20:33 ใน ข่าวน่าสนใจประจำสัปดาห์ »

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During October to November 2011, there was devastating floods in many part of the country where there are many manufactories such as Ayutthaya, Pathumthani, Bangkok, etc. As the consequent of this serious event many factory had to reduce production activities due to equipments damage. The factory needed to reduce the number of employees. Therefore some of them came up with proposal such mutual separation program or early retirement program. Mutual separation package may include payment according to the labor law plus other compensations. The key policies that have a role to help reorganization and manpower to match (to be in line with) the amount of production is “Samuk jai ruemjak” program (Voluntarily Leave) workers who get approved in “samuk jai ruemjak” program are allowed to receive paying enhance pension payments. This may include their early laid off compensation, compensation for loss job, special compensation, retirement pay, accumulates vacation pay. On the other hand, the workers that don’t get approved in the program still have to be working and if they do not want to continue working, they will leave without any benefits.
The policy states above has effect the workers who insurances themselves for unemployment differently as prescribed at section 79 of the social security act B.E. 2533 The different amount of payment of compensation rates in term of unemployment for lay-off or volunteer to leave.
(1)   50% of daily payment for unemployment from firing will be paid not excess of 180 days at a time
(2)   30% of daily payment for unemployment from volunteer to leave or the employment contract has come to an end, will be paid not excess of 90 days at a time
The fact above has created problem to determine how those workers who voluntary leave or early retirement that enroll in the program is eligible to obtain unemployment benefits from the act of social security B.E.2533
The Office of Social Security approached the Office of the Council of State, seeking the advice; here is the office of the council of state’s opinion.
“This program of early retirement may have various details and it might require considering each words of employers that appear in contract based on the purpose, there are no exact pattern to prove this point. The workers who are applied in this program is qualified as an agreement between both side - worker and employer, where the employment contract voluntarily come to an end upon the expiry of its term. Whereas the advantage of employer is reducing number of hiring employee and employee himself will receive benefit of the compensations that employer’s offered, so the section 188 part2 of labor protection act B.E. 2531 could not apply.   …. Disemployment means ..person's employment is terminated if the employer dismisses or stops employing an employee, including an employee who is no longer employed due to the insolvency of the employer(could not operate work). So this is not the case of employer using sole power to the dismissal of worker.
The employees resign from work in accordance with the program; those who are insurance worker, have to stop working because their legal relation between the employers and employees in accordance with the labor contract ends. So it is the unemployment state under the section 5 of Social Security Act and employees shall have the rights to receive the benefits under section 78, (same Act). When the suspension of the obligations according to the contract for the two sides is agreed and the contract ends; it isn’t the case that an employer dismiss his employee or the employee resign himself or the employment contract is ended in the period of employment, (of the course of work). But it is the case that the law is not clearly defined. Therefore it shall be construed as compensation for the benefit of the worker who has insurance himself in this program; in the intention of the law combine with the employers who provided the program above-mentioned. Where the Social Security Act B.E. 2533 is intended to create a security and aid fund to employees, and this program the employers want to reduce the amount of employees, so that employees who out of their jobs should be entitled to get compensation with the same amount of the unemployment rate as of dismissal rule1 (1) of ministerial regulations which prescribed the specific rate for dismissal.
            From the report of the judicial council mentioned above, we can see that the office of judicial council considered the intendment of law which protects the insurance workers, and this program provided by employer, both employer and employee are benefits. Thus the employees should be compensated as in the circumstance of unemployment by dismissal from the intention of Social Security act B.E.2533 to give employee the security and aid fund.

Mutual separation or early retirement is contract termination or resignation?

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