One employee takes sick leave several times a month. Another disappears for two days without telling anyone. A third has switched off the phone and cannot be reached. HR usually asks, "How many days before we can dismiss?" Numbers alone cannot answer that, because the law separates lawful leave from abandoning duty without reasonable cause, and the Labour Court asks whether the employer checked the facts first.
This guide covers only the stage before the decision to dismiss in cases of sick leave, absence and no contact. The employee's rights after dismissal are in the guide to employee rights on dismissal. For missed performance targets see the PIP guide, and once the matter is in court see the guide to defending a Labour Court claim.
The short answer
Do not count days and dismiss. Check five things first: whether the employee had a reason, whether notice was given, whether the employee could be reached, what the work rules say, and whether the employer has enforced the rule equally. Then choose the right route: a warning, reliance on the three-day abandonment ground, or, if there is no Section 119 ground, paying severance in the normal way.
The law Under the Labour Protection Act B.E. 2541, Section 32 gives an employee the right to take sick leave to the extent of actual illness. For leave of three working days or more the employer may require a medical certificate, and if the employee cannot produce one the employee must explain this to the employer. Section 57 requires the employer to pay wages during sick leave for up to 30 working days a year. Section 108 requires an employer with 10 or more employees to prepare written work rules in Thai, which should say how leave is to be notified. Section 118 sets severance on dismissal, and Section 119 lists the grounds on which none is payable, including (4) breach of lawful and fair work rules or orders after a written warning, where the warning is valid for one year from the date of the offence, except in serious cases that need no warning, and (5) abandoning duty for three consecutive working days without reasonable cause. If the employee believes the dismissal was unfair, the Labour Court may under Section 49 of the Labour Court Establishment and Procedure Act B.E. 2522 order reinstatement or compensation instead.
Our practical view Employers who lose these cases rarely lose because the law favours employees. They lose because they cannot show that they asked for a reason, issued a warning or tried to make contact. The safe order is: talk to the employee, record the facts, then choose the measure. Where it is doubtful whether Section 119 applies, treat it as not applying until you can prove it, and pay severance, to avoid the risk of interest.
Hypothetical used throughout: "Napa", a packing-line employee at a small packaging factory in Khon Kaen. She misses three working days in a row. On day one she sent her supervisor a LINE message saying "not feeling well", with no medical certificate, and on days two and three she did not answer the phone. The HR officer, "Surachai", wants to dismiss without severance for "absence of more than three days".
1. Frequent sick leave: what to check before treating it as a problem
Genuine sick leave is a right under Section 32 however often it occurs, so separate three questions.
- Was the employee actually ill? A medical certificate is the key evidence, but Section 32 lets the employer require one only for leave of three working days or more. For shorter leave the work rules may require other evidence, provided they apply to everyone equally.
- Was notice given correctly? The Section 108 rules should say whom to tell, by what channel, and how long before the shift. If the rules do not say, it is hard to argue the employee used the wrong method.
- Wages during leave. Section 57 requires pay for up to 30 working days a year. Days beyond that need not be paid, but that does not mean the employee can be dismissed. Work-related illness or injury has a separate compensation system, so check it before counting the days as ordinary sick leave.
If the leave was genuine and supported as the rules require, dismissal for "frequent sick leave" is not a Section 119 ground. Severance under Section 118 is payable, and there is a risk the court sees the dismissal as unfair under Section 49, especially where there is a chronic condition or continuing treatment.
If you doubt that the illness is real, ask and request a certificate under Section 32 first. Do not investigate by watching the employee's private social media or tracking them, which can breach the Personal Data Protection Act and other laws. If a certificate is genuinely in doubt, enquire openly of the issuing facility, only as far as necessary and with the employee's consent.
2. Three days absent: when does Section 119(5) apply?
Section 119(5) applies when both elements are present: absence for three consecutive working days and no reasonable cause. The second is the more important.
- If the employee was genuinely ill or had a believable emergency, such as hospital treatment or a family event, the absence has a reason, and it must be weighed even where notice was late.
- If the employee gave notice, even incomplete, it is harder for the employer to treat it as abandonment.
- The days are counted as working days on that employee's own schedule, and you need evidence of absence on each day.
In the example, Surachai can count three days, but Napa sent a LINE message on day one saying she was unwell, so he should not conclude there was no reasonable cause. He should first check what the rules require, whether a LINE message qualifies, and whether she had any other reason. If she returns with a retroactive medical certificate, weigh it under Section 32 before invoking Section 119(5).
That Section 119(5) is unavailable does not mean the employee may do as they please. The employer can issue a written warning for breach of the leave-notice rule under Section 119(4), which works only if the rule is lawful and fair and the warning is in writing and valid for one year from the date of the offence. A repeat breach within that year may then justify dismissal without severance. If an investigation is under way, see the guide to suspension during a disciplinary investigation.
3. Why counting days is not enough
The Labour Court will ask the employer, in order:
| Question | Why it is asked |
|---|---|
| Did the employee have a reason? | Section 119(5) requires "no reasonable cause" |
| Did the employee give, or try to give, notice? | Shows deliberate abandonment or merely incomplete notice |
| Could the employee be reached? | If the employer never tried to make contact, it is hard to say there was no reason |
| What do the work rules say? | Section 108; if there are none, or the employee never knew of them, they carry little weight |
| Has the rule been enforced equally? | If others were absent and not dismissed, picking out this employee looks like another motive |
| Was dismissal immediate or after months? | Long inaction may be read as the employer having accepted the situation |
The best rule is one that is written clearly, communicated to employees and applied every time. Each answer above should be backed by documents: the rules, signed acknowledgements, call logs and warnings issued to others. On the burden of proof and the documents the court usually calls for, see the guide to defending a Labour Court claim.
4. An employee who cannot be reached: building the evidence
When an employee disappears, do not assume they have resigned. Proceed in order.
- Make contact on the first day of absence. Phone, message, and the emergency contact the employee gave on joining.
- Record every attempt. Who, when, which channel, what happened.
- Send a written letter of enquiry to the address in the personnel file by registered mail (with acknowledgement of receipt), with a copy by email or LINE. State the dates of absence and ask for an explanation and supporting evidence by a reasonable date.
- Wait until the deadline and record the result. If an explanation arrives, consider it in good faith.
- Then choose the measure: a warning, dismissal under Section 119(5), or dismissal with severance.
Sample contact-attempt log (adapt to your organisation):
Contact log: employee absent from work
Employee: ____ Position: ____ Supervisor: ____
Working days missed: ____ / ____ / ____ (total ____ consecutive working days)
No. | Date-time | Contacted by | Channel | Result
1 | ____ | ____ | Phone | No answer / switched off / answered and said ____
2 | ____ | ____ | LINE message | Read / unread / replied ____
3 | ____ | ____ | Emergency contact (____) | ____
4 | ____ | ____ | Registered mail no. ____ to address in personnel file | Delivered / returned
Relevant work rule: ____ (employee signed to acknowledge on ____)
Reason given by employee (if any): ____
Recorded by: ____ Date: ____
The letter must go to the address the employee gave, not to a guessed address, and if it is returned, keep the envelope as evidence. Do not post about the missing employee in company chat groups or on social media, which can breach personal data rules and amounts to unnecessary public shaming.
If the employee has in effect left by resigning without handing over work, see the guide to an employee resigning without handover. If the employee says a resignation letter was signed under pressure, see the guide to forced resignation.
5. Health data: how to record and use it
Medical certificates, test results and what an employee says about their illness are health data, which is sensitive personal data under Section 26 of the Personal Data Protection Act B.E. 2562. An employer can often say it needs them to comply with labour law, but it should keep to the principle of necessity.
- Keep only what is needed to approve leave and to prove it later, such as the leave dates and a copy of the certificate. Treatment details are not needed.
- Limit access to HR and those who must approve leave.
- A supervisor should not tell colleagues what illness the employee has.
- Do not post images of certificates in group chats.
- Set a retention period and destroy the data when it is no longer needed.
For the legal bases and employee privacy notices, see the PDPA guide for HR.
6. If Section 119 does not apply: severance and unfair dismissal risk
If the employer dismisses and no Section 119 ground exists, it must pay
- severance under Section 118, according to the employee's length of service;
- notice under Section 17, or pay in lieu of notice under Section 17/1;
- any outstanding wages and entitlements, such as accrued annual leave. Late payment may carry interest under Section 9.
The employee may also sue for unfair dismissal in the Labour Court under Section 49 of the Labour Court Establishment and Procedure Act B.E. 2522. The court considers whether the reason for dismissal was fair to both sides. Dismissing someone who was genuinely ill, without assessing the effect on the work or looking for alternatives, is the kind of case a court is likely to scrutinise closely. The outcome depends on the facts of each case, and we cannot promise a result.
If frequent leave is really affecting the business, talk to the employee about covering the work, adjusting the role where suitable, or agreeing to end the contract with severance, rather than citing a ground the law does not support.
7. Table: situation, what to check, main risk
| Situation | What to check | Main risk |
|---|---|---|
| Frequent short sick leave, a certificate only some of the time | Genuine illness, notice under the rules, day count under Section 57 | Dismissing for lawful leave; severance owed and unfair dismissal risk |
| Sick leave beyond 30 working days in a year | Medical certificate, type of illness, work-related or not | Excess days need not be paid, but that does not allow dismissal without severance |
| Sick leave of 3 days or more, no certificate | Request a certificate under Section 32; did the employee explain? | Rejecting the explanation without considering it |
| Absent 3 consecutive days, no notice, not answering the phone | Contact log, letter to the address on file, reason the employee gives | Relying on Section 119(5) with no proof there was no reasonable cause |
| Notice by the wrong method, for example LINE instead of a call | Do the Section 108 rules say so? Did the employee know? | Unclear or unnotified rules cannot ground a warning |
| Absent two days, repeatedly | Earlier warnings (valid 1 year), effect on the work | No warning, so Section 119(4) is unavailable |
| No work rules, or rules never enforced | Prepare them under Section 108 and notify everyone | No basis to enforce, and a finding of unequal treatment |
| Employee returns with a retroactive certificate | Check the certificate, its date, and why notice was not given | Dismissing someone who was genuinely ill |
| Illness details kept in group chats or shared files | Who has access, how long kept | Breach of PDPA Section 26 |
Checklist before deciding to dismiss
Facts
- Count the days missed against that employee's own schedule, with evidence for each day
- Ask the employee for a reason and record the answer
- Check whether the employee gave, or tried to give, notice by any channel
- Check the certificate and leave dates under Sections 32 and 57
Documents
- The Section 108 work rules cover leave notice and the employee signed to acknowledge them
- There is a contact log and a letter to the address in the personnel file
- Check earlier warnings and confirm none is older than one year
- Check that the same rule has been applied to other employees
Options and decision
- Decide whether Section 119(4) or (5) really applies; if unsure, assume severance is payable
- Calculate severance (Section 118) and pay in lieu of notice (Section 17/1)
- Have a lawyer review the letter before it goes out; see when HR should have a lawyer review
Personal data
- Keep health data to what is necessary, limit access and do not disclose it to colleagues
Further reading
- Employee rights on dismissal — what the employee can claim and the limitation periods
- Performance improvement plans (PIP) — when the problem is performance, not absence
- Employee resigns without handover — when the employee has gone in the manner of a resignation
- Defending a Labour Court claim — the documents the court usually calls for and how to respond
- PDPA for HR — handling health data and employee records
- Suspension during a disciplinary investigation — while the facts are being checked
- When HR should have a lawyer review — decision points before sending a letter
Before dismissing for sick leave or absence, check the reason, the notice, the contact attempts, the work rules and equal enforcement, and only then choose a measure. Do not count days and dismiss at once.
We help check the facts and documents before a dismissal, prepare work rules and warning letter templates, and set up a contact log for absent employees. For an initial consultation, call +66 92 254 2045 or send us the details. See also HR documents.
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.
