When the Thai employers consider to hire a new employee to join their companies, most of new employees will normally be given what is called “Probationary Period” also known as Probation, Trial Period or On-the-job Tryout which is set as a condition by the employers. Most of the companies in Thailand recognized the importance of having probationary period in order to assess the skills or the performance of employees before permanent employment at work as example; probation period is allows employer to test out whether new employees are a good fit for the business , the culture and also has the necessary skills. To make this work, the employers need to ensure that they correctly set out their probationary periods and properly manage them. At the same time, the new hire gets a chance to see the company atmosphere, his/her role, and position and so on. However, during the probationary period, employment may be terminated either by the employee or by the employer.
Probation is not be mentioned in Thai labour law. “Probation” is just the agreement between employer and employee. However, under Thai labour law, an employment is an employment, no matter what status is given to an employee including probation. As long as an employee works for the company – he/she is your employee under Thai Labour laws. This means that, the probationers are considered as employees under Thai labour law and they are entitled to receive a minimum of 13 official public holidays per year, an additional six vacation days, 30 working days of sick leave per year, with full pay. In addition, they are also entitled to receive overtime pay (OT pay) if they work more than 8 hours a day or work on a holiday.
Probationary periods are normally clearly included in the employment contract. The terms of the probation period should include the duration of probation period and the method of assessing for the pass and failure of their probation period.
Thai labour law does not specifically determine the length of trial or probationary periods in employment relationships. Therefore, there is no mandatory minimum in the duration of probation. Probationary Period generally last for three months (90 days) and up to 119 days. Definitely, probation period can be shorter or longer they can also be extended which depends on the mutual agreement between the employer and the employee based on the consideration of each company in terms of job position.
However, the probation period for most companies should not exceed 119 days. This is because once the initial 119 days has passed, the severance liabilities and notice periods under Thai labor law automatically come into effect. Therefore, the majority of employers tend to stick with the whole 119 days to avoid severance pay. For example, the employer can give the notice within the 2nd month so that the employee will leave by the end of the 3rd month. Wasting the 4th month of probation is clearly, not an effective approach.
Probationary period is a series of formal review meetings that should take place between the new hire and his/her manager. Employers should inform employees how their probationary period will be assessed. The most important criteria for assessing the success of a probation period are usually employee performance, behavior and conduct, capability and demonstration of skills or experience. Mostly the line manager or the head of department is responsible for monitoring and assessing the progress of a new employee during this period.
Before the end of the probationary period, a performance review meeting should be arranged to assess if they passed, failed or if it is necessary to extend the probation period.
If there is the extension allowed in the employment contract, probation periods can be extended upon review of the employee’s suitability. The purpose of extending the probationary period is to give more time and opportunity for the employee to improve his/her performance to meet the required standards that set by the supervisor. Once the employer and employee make an agreement on extending the probationary period , it is important for the employer to set out the terms of extension in writing such as the length of the extension and the end date and the reason for the extension. By keeping written records can help employers avoid an unfair dismissal claim.
Legally, the employer has a right to terminate such employment agreement during probationary period with/without 1-month notice period depending on the causes as below:
1) During the probation period, if the employer decides to terminate an employee by giving the reasons that an unsatisfactory work performance or not the right match with this position, the employer must notify the employee at least 1 month. Otherwise, the employer will be liable to pay in lieu of notice for 1-month salary or 30-day wage of the current rate.
2) During the probation period, if the employer decided to terminate the employee by giving the reasons according to Section 119 of the Thai Labor Protection Act as following:
3) In case of the probation period is extended to be more than 119 days, the employer will be entitled to severance pay under Thai labour law.
There may come a time where an employee on probation decides to resign early as they see themselves do not match for the job or they are unhappy with the workplace environment, or they have been given a new better job offer elsewhere.
The employees should give notice of their intention to leave the companies. The length of the notice period will depend on the terms of their employment agreement. However, if the employee is casual they are not legally required to give any notice at all.
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