Pre-trial hearing set by Central Labour Court as employer held Social Security Office and employee liable for the “unlawful” order issued by the SSO officers in Samut Sakhon

Press Release

For immediate release on 3 May 2013

Pre-trial hearing set by Central Labour Court as employer held Social Security Office and employee liable for the “unlawful” order issued by the SSO officers in Samut Sakhon 

On 1 May 2013, at 09.30, the Central Labour Court set out the date for pretrial hearing as the Kyoto Packaging Co., Ltd. sued Social Security Office (SSO) and Mr. Tun Aye, their employee, as the competent officer of the 1994 Workmen’s Compensation Act had issued a directive no. 4/2555 requesting the employer to provide compensation to Mr. Tun Aye (a) Thon (Burmese). Mr. Tun Aye was an employee of Kyoto Packaging, Samut Sakhon Branch, and got injured while working with plastic compression machine causing his left thumb to lose its capacity by 80%, left middle finger by 90%, left index and ring fingers by 78%, and in total, his physical capacity is compromised by 40%. Thus, the employer was ordered to provide the compensation for the amount of 274,560 baht as per the Workmen’s Compensation Act. The plaintiff in this case disagreed with the order and therefore appealed to the Workmen’s Compensation Fund Committee. The Committee in its resolution 282/2555 dismissed the appeal. Thus, the plaintiff is now holding the SSO and their employee liable in court as they deem that “the directive of the competent officer of Samut Sakhon SSO and the decision made by the Workmen’s Compensation Fund Committee were unlawful as the injuries sustained by Mr. Tun Aye were “self-inflicted by his intent”. The Court is asked to revoke the decision and order of the accused including the directive no. 4/2555 dated 8 May 2012 and the decision no. 282/2555 dated 5 October 2012 by the Workmen’s Compensation Fund Committee. Thus, Mr. Tun Aye complained to the Migrant Justice Program (MJP), the Human Rights and Development Foundation (HRDF), the chapter in Samut Sakhon to seek legal counseling and assistance.

During the hearing, Mr. Tun Aye declared to the court that he would agree to accept 200,000 baht as compensation to settle the case. The attorney of the plaintiff informed the court that he needs to explain the offer to the plaintiff and will inform the court during the first witness examination hearing on 28 August 2013.

Miss Janjira Junpaew, attorney of the defendant, opined that factually and legally, the employee is entitled to received compensation as per Section 18(1) and (2) of the 1994 Workmen’s Compensation  Act and the compensation cannot be exempted by Section 22(2) since the injuries were work-related. The employer is obliged to carry out his legal duty, but instead invokes Section 53 to hold SSO liable and to ask the Court to revoke the directive of the competent officer and the decision by the Workmen’s Compensation Fund Committee. The employee is also held liable jointly with SSO. Nevertheless, if there is mediation, and the employee is satisfied by the amount of compensation offered by the employer, the case can be settled, though the amount will likely be lower than the one required by law. Though labour law is concerned with public order, but mediation can be made to reduce the amount of compensation beyond the legal minimum. Though such mediation may reduce the number of cases brought to the court by the employers, but it undeniably compromises the intent of the Workmen’s Compensation Act since the amount mediated is usually lower than a normal compensation.

In addition, HRDF seems that SSO should make more effort to invoke the Workmen’s Compensation Fund Act to demand the employers to make contributions to the Fund. In addition, SSO should consider revoking the circular no. RS0711/W 751 dated 31 May 2012 which specifies that only an employee of an employer that has made contributions to the Fund is entitled to the compensation.  And despite the migrant worker has a valid work permit, they might not be entitled to receive the compensation if their employer fail to make contribution to the Fund.  Such a requirement is a breach of the purpose of the Act meant to provide protection to all workers suffering from occupational health including work-related injuries, disability, disappearance and death. It also encompasses protection of an employee suffering from a disease caused by the working environment or condition.

For more information, please contact Janjira Junpaew, attorney, 083-907 2032 or Preeda Tongchumnum, Deputy Secretary General of Human Rights and Development Foundation (HRDF), 089 459 0212