Most employers know that terminating employees for poor job performance is not easy. But it is actually legally possible—if employers have the right approach and take specific precautionary measures. However, failing to take these precautions can mean that an employer is either stuck with an incompetent employee or on the losing end of a lawsuit for unfair termination. This article will lay out some essential considerations for employers in Thailand regarding termination of employment for poor performance. First, understand that “poor work performance” is a lack of performance or ability, or an inability to work with other employees. It does not constitute a violation of work rules or regulations. In some cases, however, an employee’s failure to act in accordance with lawful instructions or commands of the employer, resulting in poor work performance, could also be considered a violation of work rules or regulations. This may be the case if the work rules or regulations clearly state that an employee must strictly comply with the employer’s instructions or commands. Second, an employer can, in fact, terminate an employee due to poor work performance. For example, this may be possible in the following scenarios: Records show that an employee’s work performance has fallen below the employer’s required standards, and the employee has not tried to improve his or her work performance for three consecutive years. In addition, it does not appear that the employer was biased when giving ratings or scores for the employee’s work performance. The job description of the employee includes coordination with employees in other departments, but the employee has not been able to do so. Therefore, the employee was reassigned to a new job function, but the employee still did not improve. This suggests that the employee has a lack of interpersonal skills and is not

Digital asset litigation is one of the most cutting-edge types of litigation in Thailand. There are factual, technical, regulatory, and legal challenges and hurdles for the parties to the dispute throughout all procedural stages. This is mainly because digital assets are different in nature from more conventional types of assets, as they are digitally created and used on a blockchain network. Legal Status The first issue to be aware of in approaching digital asset litigation is the legal status of digital assets. Under Thai law, there are two key terms concerning digital assets’ legal status: “thing” and “property.” Things are tangible objects, while property provides a much wider range of meaning. Property could be anything—including intangible objects that may be of value and able to be appropriated. It is fairly clear that digital assets are not a “thing” since they are not tangible. However, determining whether digital assets are “property” is even more complicated. Although digital assets are intangible objects, one might argue that, unlike fiat money, they do not have any inherent value but are rather conferred value based on certain people’s perspective. (For example, the Bank of Thailand expressed this opinion of bitcoin in 2014.) Some may even argue that digital assets cannot be possessed and therefore cannot be appropriated. According to these arguments, digital assets should not be regarded as a property either. Legal Grounds Determining whether digital assets are things, property, or something else altogether is crucial to any subsequent litigation. In Thailand, the party initiating the lawsuit (the plaintiff) generally has to state the relevant legal grounds for the complaint—that is, the different relevant legal provisions that the court is to apply to the case. These provisions of Thai laws mostly refer only to “things” or to “property,” not both. This often means that

On March 19, 2023, Thailand’s new work-from-home (WFH) legislation amending the Labour Protection Act (No. 8) B.E. 2566 (2023) was published in the Government Gazette. It will come into effect on April 18, 2023. The amendment aims to enhance employee protections to accord with current global standards, provide alternative working arrangements for employers and employees, increase workforce efficiency, and strengthen employees’ job security and a better quality of life. As we detailed previously, the new WFH legislation allows employers and employees to reach agreements that permit employees to work remotely. Since there are no accompanying criminal punishments relating to this new provision, and the legislation incorporates the term “may agree,” it appears that this WFH provision is not mandatory but is primarily intended to facilitate and encourage remote working agreements between employers and employees. For more details on the WFH legislation, or on any aspect of employment law in Thailand, please contact Tilleke & Gibbins at [email protected].

From the perspective of a plaintiff (or a group of plaintiffs) considering initiating a class action in a Thai court, a primary benefit of proceeding as a class action is the ability to aggregate claims that would otherwise be too small or too costly to bring individually. Where one plaintiff might lack a claim large enough to make pursuing litigation a cost-effective option, the combined claims of many plaintiffs could surpass that threshold. Similarly, the prospect of representing a number of plaintiffs, along with the potential legal fees that could be awarded with a win, should serve as an incentive for counsel to represent a class of plaintiffs who, acting individually, would otherwise not be able to engage a lawyer interested in taking their case. For these same reasons, a defendant will most likely—although not necessarily always—oppose a plaintiff’s request that a case be allowed to proceed as a class action. From a defense perspective, preventing a case from proceeding as a class action could be a significant strategic goal, as it could mean that individual plaintiffs, as well as their counsel, would lack the financial incentive to pursue potentially costly litigation for their separate, relatively low-value claims. Potential defendants, therefore, may benefit considerably by understanding how a Thai court determines whether a case can proceed as a class action and, if it does, the potential options for a defendant that objects to this determination. The Court’s Initial Determination: Class Action or Ordinary Litigation? When a named plaintiff requests that a case proceed as a class action, that plaintiff must present the case to the court in accordance with the prerequisites stipulated by Thai law. The Civil Procedure Code (CPC) sets out the prerequisites for a case to proceed as a class action. Considerations include: whether the nature of