Your driver cannot be reached. A colleague says he was arrested by the police on Saturday night, nothing to do with work. HR asks whether you can dismiss him now, or wait until he has missed three days. The answer under labour law is that it is too early to decide. An arrest, a police report or a prosecution is not the same as a court finding of guilt, and it is not by itself a cause to dismiss without severance.
This guide is for employers and HR, and for the line manager who often hears first. It takes a narrow angle: when an employee has a criminal case outside working hours, what to separate, what to check and what you can do while the case is pending. For the general rules on dismissal see employee dismissal rights, for suspension see suspension during a disciplinary investigation, and for counting absence days see frequent sick leave, absence or unreachable employees.
The Short Answer
Keep four questions apart. First, the allegation itself: what is he accused of, and it is not proven. Second, absence caused by detention, which is a separate problem from the allegation. Third, what your work rules actually say. Fourth, whether the conduct connects to the job or the employer's interests. If you cannot yet answer all four, the safer course is a temporary arrangement while you collect facts, not immediate dismissal.
The law. Section 119 of the Labour Protection Act B.E. 2541 lists the causes for which severance is not payable. The relevant ones are (1) dishonesty in duty or an intentional criminal offence against the employer; (4) breach of lawful and fair work rules, regulations or orders after a written warning, except in serious cases; (5) abandoning duty for three consecutive working days without reasonable cause; and (6) a prison sentence by a final judgment, where, for an offence committed by negligence or a petty offence, the employer must also have suffered damage. In addition, Section 583 of the Civil and Commercial Code lets an employer dismiss without notice where the employee commits serious misconduct or acts in a way unbecoming of the proper and honest performance of duty, but the employer must be able to prove that it happened and was serious, not merely alleged. If an employer dismisses without a supportable cause, the employee may claim compensation for unfair dismissal under Section 49 of the Labour Court Establishment and Procedure Act B.E. 2522.
Our practical view. The common mistake is to treat news or hearsay as fact and dismiss the same day. The Labour Court then does not decide whether the employee did it, but whether the employer had a lawful cause on the day of dismissal. An employer that separates the four questions, collects facts from lawful sources and picks a proportionate interim measure will hold up whichever way it finally decides.
Running hypothetical. Thanawat is a driver at a temperature-controlled freight company in Khon Kaen. On Monday morning he does not come in. A colleague says he was arrested on an assault allegation arising from an incident at a restaurant outside work hours on Saturday night. HR manager Kanya must decide what to do. We use this example throughout.
1. Arrested or Accused Versus Convicted: What Is the Difference?
Arrest, police report, detention, indictment and judgment are separate stages. What the employer can know differs at each, and many cases are not pursued, are withdrawn, are dismissed or are settled, depending on the offence. Before a court judgment, what the employer holds is an allegation, not a proven fact.
| Stage | What the employer can know | Cause to dismiss without severance? |
|---|---|---|
| Arrest or police report | The initial allegation | No, not by itself |
| Detention or bail application | Whether the employee can come to work | No, not by itself, but it affects absence (Section 3) |
| Public prosecutor indicts | The case goes to court | No, not by itself |
| Court judgment, still appealable | A first-instance result | Still risky; wait or look to other causes |
| Prison by a final judgment | The final result | May fall under Section 119 (6), subject to Section 2 |
2. When Do Section 119 and Section 583 Apply?
Check each cause separately. Do not lump them together as "a criminal case".
- Section 119 (1) applies to an intentional criminal offence against the employer, such as embezzling or stealing company property. It does not cover a fight with a stranger outside work. Even where the offence is against the employer, the employer needs its own evidence.
- Section 119 (6) applies to a prison sentence by a final judgment. For an offence committed by negligence or a petty offence, the employer must also have suffered damage. Before the case is final, this cause has not arisen. Where a court suspends the prison sentence, check with a lawyer before relying on it.
- Section 119 (4) applies to a breach of lawful and fair work rules after a written warning (valid for up to one year from the date of the offence), except in serious cases. A rule that simply says "no criminal cases", with no link to the work, may be questioned as not fair.
- Civil and Commercial Code Section 583 applies to serious misconduct or conduct unbecoming of the proper and honest performance of duty. Look at the real seriousness and the real connection to the work.
An employer relying on Section 119 must state the facts as the reason in the dismissal letter or tell the employee at the time of dismissal, otherwise it cannot raise that reason later. If you are unsure whether a cause applies, treat severance as payable.
3. The Employee Is in Custody and Absent: Can Section 119 (5) Be Used?
Section 119 (5) needs two things together: abandoning duty for three consecutive working days, and doing so without reasonable cause. Custody stops the employee coming to work against his will. A court may or may not treat that as a reasonable cause, depending on the facts. We should not decide that for the court, and we do not cite Supreme Court numbers because each case turns on its own facts.
Facts that carry weight:
- Did the employee or family notify the employer, or try to, and when and how?
- Was bail sought, when was it granted, and did the employee return or contact the employer afterwards?
- How long did custody last? Was every absent day due to custody, or did he stay away after release?
- What do the work rules say about reporting absence, and does the employer apply them equally to others?
- Did the employer try to make contact, and is there evidence, such as messages or a letter to the address on record?
An employee who is released and then goes silent is in a different position from one whose family called on day one and is arranging bail. For counting days and logging contact attempts, see frequent sick leave, absence or unreachable employees.
4. While the Case Is Pending, What Can the Employer Do Short of Dismissal?
| Option | Use when | Caution |
|---|---|---|
| Leave arrangements | The employee cannot attend for a short time | Use leave the employee is entitled to, or agreed unpaid leave; put it in writing; never force a resignation letter |
| Suspension | The work rules give the power and there is a work-related reason to investigate | Follow Section 116: written order stating the offence, no more than seven days, pay of at least 50%. See the suspension guide. Do not use suspension as an automatic penalty |
| Temporary reassignment | Roles of trust, such as cash handling, driving, work with children or security | Do not cut pay or terms without consent; say it is temporary and explain the risk to the role |
| Wait for case milestones | There are not enough facts yet | Set a review date, such as bail, indictment or judgment |
In the example Kanya arranged agreed unpaid leave in writing with the family and set a review for when he is granted bail. Meanwhile the company uses a stand-in driver. If he returns, the company should assess whether the case concerns driving safety before deciding whether he continues on the route or is moved temporarily.
5. Facts to Collect, and How to Handle the Data
Collect facts from lawful sources only: the employee, the family or a person he authorises, documents the employee or his lawyer provides, and information already lawfully public. Do not phone the police for details beyond what they may lawfully release, do not access the employee's phone, email or social accounts without authority, and do not ask the employee to waive rights or admit guilt to the employer.
| What to check | Why | Lawful source |
|---|---|---|
| Type of charge | Work-related, such as embezzlement, or a private matter | Employee, family, employee's lawyer |
| Custody and bail status | When he can return | Family, employee |
| Notification by family | Assess reasonable cause for absence | Call and message logs |
| Role sensitivity | Choose a proportionate interim measure | Job description |
| Any work-related element | Use of company time, property or reputation | Internal records, the company's own evidence |
| What the work rules list | Whether the cause and penalty are announced | The version in force on the date of the event |
| Treatment of others | Equal application | The company's disciplinary history |
Sensitive data. Criminal record data is sensitive personal data under Section 26 of the Personal Data Protection Act B.E. 2562, which has stricter rules than ordinary data. Keep only what is needed for the employment decision, let only decision-makers such as HR and the relevant executives see it, do not tell colleagues or post it in company chat groups, and do not presume guilt. For the legal basis and storage, see employee personal data and the PDPA. An employee who wants to know his rights as a suspect can read criminal defence.
6. If the Employer Decides to Terminate
If no Section 119 cause applies:
- Give notice under Section 17 in writing, up to three months, or pay in lieu under Section 17/1 on the day the employee leaves.
- Pay severance under Section 118 according to length of service.
- Write the true reason so that it matches the internal papers. State the facts the employer knows. Do not write "committed a crime" while the case is not final.
- Keep the papers: the work rules, the letter of enquiry, contact attempts, the facts known on the date of dismissal and why this measure was chosen.
If the employer believes Section 119 genuinely applies, for example the case is final and the sentence is imprisonment, state that cause in the letter from the start. If sued, see defending labour court claims for employers.
7. Sample Letter Asking About the Absence and Expected Return Date
Adapt to the facts and send it by a route the employee or family can receive, and by registered mail to the address on record. Do not ask for details of the allegation and do not ask for an admission.
Subject: Request for the reason for absence and expected return date
Dear ____
The company understands that you have not been at work since ____ and we have not been able to reach you directly.
Please let us know
1) the reason you have not attended (you do not need to give details of the case)
2) the date you expect to return to work
3) how the company can contact you or a person you authorise
Please reply by ____ by phone ____ or email ____, or ask your family to reply for you.
The company has not decided anything about your employment status and will act in accordance with the work rules and the law.
The company will keep this information confidential to those who need it for their duties.
If you wish to take leave or arrange leave, please tell HR.
HR, ____ Company Date ____
Checklist
When you first hear
- Record the date and time, who told you and by what channel
- Do not dismiss yet and do not conclude he is guilty
- Limit knowledge of the case to those who need it
Check the facts
- Check the type of charge and custody and bail status from lawful sources
- Check whether the employee or family notified the company
- Check the work rules and equal treatment against past cases
Interim measures
- Choose leave, suspension or temporary reassignment proportionately, in writing
- Set a review date tied to case milestones
If dismissing
- Check each Section 119 and Section 583 cause; if unsure, pay severance
- Pay under Section 17/1 or give notice under Section 17, and pay severance under Section 118
- Write the reason to match the facts and keep the papers
Further Reading
- Suspension during a disciplinary investigation — conditions and pay under Sections 116 and 117
- Employee dismissal rights — what an employee can claim and the time limits
- Frequent sick leave, absence or unreachable employees — counting absence days and logging contact
- Defending labour court claims for employers — when sued for unfair dismissal
- Employee personal data and the PDPA — handling sensitive data in HR
- Criminal defence — overview of criminal procedure
- Employee criticising the company on social media — another case where off-duty conduct touches the employer
Being arrested or prosecuted is not the same as being guilty, so an employer must separate the allegation, the absence, the work rules and the link to the job, and choose an interim measure before deciding to dismiss.
We help review the facts and work rules, assess whether Section 119 applies, and draft the letter of enquiry, the suspension order and the dismissal letter to match the facts. For an initial consultation, call +66 92 254 2045 or send us the details. See also labour law compliance for businesses.
This guide is published by Suwanvara Law Firm — a Khon Kaen law firm established in 1986. General information only, not legal advice on a specific matter.
