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Dario Navarro
Mobile: +66-(0)9-1998-0502 E-Mail: [email protected]
Via Email: 28 October 2014 Dr. Elizabeth (Beth) J. Stroble
President Webster University 470 East Lockwood Avenue St. Louis, MO
63119 USA
Dr. Julian Z. Schuster Provost, Senior Vice President and Chief
Operating Officer Dr. Grant Chapman Associate Vice President for
Academic Affairs and Director of International Programs Webster
University St. Louis, MO 63119 USA
Mrs. Nisha Ray Chaudhuri Academic Director Webster University
Thailand Campus Empire Tower, 4th Floor, Retail Wing 195 South
Sathorn Rd., Yannawa Sathorn, Bangkok 10120 Thailand
Mr. Roy R. Avecilla Assistant Professor and Interim Head School
of Business and Technology Webster University Thailand Campus
Empire Tower, 4th Floor, Retail Wing 195 South Sathorn Rd., Yannawa
Sathorn, Bangkok 10120, Thailand
Re: Reply to Email from Dr. Grant Chapman, Dated 28 October
2014, Deferring to Webster
University (Thailand) (WUT) for Resolution of Dispute To Drs.
Stroble, Schuster, Chapman, Mrs. Chaudhuri and Mr. Avecilla: This
letter is in reply to the email captioned, WUT Employment Concerns
and WUT General Concerns, from Dr. Grant Chapman, 28 October 2014,
recommending that I work with Webster University Thailand
Administration for local Thailand resolution as the WUT employee
policies and procedures should guide any process including appeals
and concerns. While I appreciate the measured and reasonable tone
of Dr. Chapmans reply and what I hope is the good faith motivating
it, I must, with greatest respect, point out that suggesting that I
work with the local WUT administrators to resolve my employment
dispute without any proactive intervention from Webster University
in St. Louis (WUSL) is not a practical option likely to produce any
solution whatsoever. You are, in effect, asking me to deal with and
submit myself to the authority of the very same WUT officials who
are all (1) deeply personally embroiled in this dispute after
having been previously reported by me for their managerial
negligence and (2) demonstrably committed to harassing me and
retaliating against me as a result of my contact with Mr. Craig
Mundle, the Director of Internal Audit at WULS. Furthermore, given
the level of overt self-dealing, cronyism, racial discrimination
and utter disregard and apparent ignorance of the very WUT employee
policies and procedures you suggest might serve as a guide in this
dispute, there is virtually no possibility that I could expect or
receive a fair consideration of my claims by any senior WUT
administrator. Such a local internal administrative remedy is,
therefore, obviously futile and effective. Also, I hasten to point
out that I have not yet received the following local WUT
administrative policies and procedures: (1) the WUT Employment
Policies and Procedures 2011 mentioned in the third paragraph of my
putative employment contract, (2) Ministerial Regulation 2006,
whatever that is, and also mentioned in the third paragraph of my
putative contract and (3) the WUT Rules and Regulations handbook,
which is cursorily referenced in a document that was emailed to me
on 26 August 2014, 20
S.K. Grand Sathorn Apartments, Apt. 310, 203 Soi Sribumphen
Toongmahamek, Sathorn, Bangkok, Thailand 10120
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Drs. Stroble, Schuster, Chapman, Mrs. Chaudhuri and Mr. Avecilla
Webster University Thailand 28 October 2014 Page 2 days after I
signed the putative employment contract and after classes had
started, that was referred to as the Faculty Handbook 2013 Version.
I have repeatedly informed WUT and WUSL administrators in my 19
October 2014 challenge and appeal of the 16 October 2014 warning
letter and my lengthy 25 October 2014 53-page substantive reply to
the warning letter that I have never even been given any of the
three crucial documents specified in the preceding paragraph. I
have repeatedly requested copies of all those documents and have
yet to receive any reply whatsoever to those requests from the
local WUT administrators. This raises an obvious practical
difficulty in following your suggestion that I rely upon as the WUT
employee policies and procedures to guide any process including
appeals and concerns because I have never even been given a copy of
these three crucial documents even after three months of being an
employee at WUT and having made several formal requests for them
even after I have invoked an administrative appeals process the
rules of which are entirely unknown to me. This complete lack of
response from WUT administrators is typical as their preferred
tactic is to stonewall complainants in the hope that by ignoring
them the problem will just go away. I am committed to fighting
local WUT administrators for as long as it takes me to obtain
satisfaction of my demands, beginning with the prompt payment his
Friday, 31 November 2014, of 146,100 baht (about US$4,500) by
interbank transfer. Finally, again, sincerely meaning no
disrespect, I do not understand your reference to the University
wide policies of WUSL after referring me earlier in your email to
the local WUT employee policies and procedures as a guide. Since
you very kindly said you would be happy to answer any questions or
concerns I might have about such University wide policies as found
at the Internet link you provided, I would like to ask you the
following very pressing questions about that very subject: (1)
Which set of policies and procedures govern my employment dispute
with WUT? WUTs
policies and procedures or WUSLs policies and procedures? (2) If
the answer is WUTs policies and procedures, then what is the
relevance of consulting
University wide policies? (3) Do the University wide policies
preempt a WUT rule, policy or procedure that is inconsistent
with them? In other words, technically speaking, are the
University wide policies lexically prior to the local WUT policies
and procedures such that the WUT policies and procedures must, as
an internal matter, strictly conform to the University wide
policies or else be considered null and void?
(4) What is the legal relationship between WULS and WUT? Is WUT
a wholly owned subsidiary? Is
the legal authority of WULS to manage WUT legally vitiated by
the requirement under Thai law that local university management
authority must be vested in a local WUT board of directors the
composition of which is effectively determined by regulations of
the Thai Ministry of Education?
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Drs. Stroble, Schuster, Chapman, Mrs. Chaudhuri and Mr. Avecilla
Webster University Thailand 28 October 2014 Page 3 (5) Does WULS
have effective hire and fire authority over WUT administrators,
including the
Rector, the Academic Head, the Department Heads and other senior
administrators? Given the many reports you and your fellow WUSL
administrators have been receiving for so long concerning the
shocking misconduct and managerial failings of WUT administrators,
I am, frankly, at a loss to understand why WUSL and your colleagues
have not been much more proactive in investigating the reports you
have received and taking corrective action, especially in my case
where it is obvious any further administrative review by the
personally embroiled WUT administrators would not only be futile
but expose me to personal harassment and even a serious risk of
physical harm, given their documented history of making death
threats to recalcitrant complainants. Such passivity in the face of
a situation that has obviously careened out of control only invites
worse catastrophes. I, therefore, respectfully urge you to
reconsider your position. Finally, I must admit that there is
another major problem with using WUT employee policies and
procedures as a guide: many of these policies blatantly violate
Thai labor law. In particular, the deferred compensation policy,
which has never been provided to me, has been invoked by WUT
administrators to justify (1) the unilateral determination to defer
compensation paid to me until the end of the semester without my
consent and (2) in an amount unilaterally determined by WUT
administrators also without my consent. This WUT policy clearly
violates Section 70 of the Thailand Labor Protection Act of 1998
(TLPA), which requires [a]n employer shall pay wages . . .
correctly . . . not less than once a month . . . . (Emphasis
added.) This rule applies unless the parties agree to another
payment schedule on the strict condition that the alternative
payment schedule is in the best interests of the employee. Thus,
this particular local WUT policy is not a useful guide to the
resolution of my claims against WUT because it is patently illegal.
Furthermore, given that it is my legal position in this dispute
that no contract was actually formed between WUT and myself under
Section 366 of the Thailand Civil and Commercial Code (TCCC)
because the parties have not agreed upon all points of a contract
upon which, according to the declaration of even one party,
agreement is essential, the contract is, in case of doubt, not
concluded. In my earlier 25 October 2014 submission, I have already
declared pursuant to TCCC Section 366 that the one-page putative
contract has not been properly formed due to the absence of
essential terms, and is, therefore, not legally binding for the
following specific reasons:
(1) Two Crucial Documents Never Provided. WUT, the party
responsible for
drafting the putative contract, never provided respondent with
any of the following essential documents referenced in the crucial
third paragraph of the putative contract: (a) the WUT Employment
Policies and Procedures 2011 (b) Ministerial Regulation 2006
Since respondent was never provided with these documents and has
no actual notice of their contents, they cannot be lawfully deemed
a part of the putative contract under TCCC Section 366 and, since
they are clearly essential to respondents informed acceptance of
the terms, no contract was formed.
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Drs. Stroble, Schuster, Chapman, Mrs. Chaudhuri and Mr. Avecilla
Webster University Thailand 28 October 2014 Page 4
(2) Most Important Document Provided 20 Days After Signing. WUT,
the party
responsible for drafting the putative contract, failed to
provide respondent with Faculty and Teaching Policy Handbook 2004
or any subsequently issued revision of said Handbook, as referenced
in the crucial third paragraph of the putative contract, before or
at the time of the respondents execution of the putative contract
on 6 August 2014. Only 20 days after the putative contract was
signed, did WUT provide respondent with a copy of a document
variously described as the Faculty Handbook 2013 Version and the
Faculty Manual (2013 version) without ever expressly identifying
this document as the superseding revision of the Faculty and
Teaching Policy Handbook 2004 referenced in the putative contract.
Since respondent was not provided with this 2013 document until 20
days after the contract was signed and had no actual notice of its
contents when he signed the putative contract, it cannot be
lawfully deemed a part of the putative contract under TCCC Section
366 and, since it is clearly essential to respondents informed
acceptance of the terms, no contract was formed.
(3) No Incorporation by Reference. The crucial third paragraph,
which consists of a single highly ambiguous sentence fragment,
lacks any language incorporating by reference any of the three
crucial documents and, so, none of them could have been deemed an
integral part of the contract even if they had been provided to
respondent on the date of execution, which they were not. While
knowledge of some laws may, under certain circumstances, be imputed
to parties, because they are a matter of official public record,
knowledge of private policies and procedures may not be imputed to
a party unless actual notice is given by physical delivery of a
document embodying such private policies and procedures. Respondent
cannot be held to contractual provisions of which he had no actual
notice and which were entirely unknown to him at the time he signed
the putative contract, so no contract was formed.
(4) No Mention of Deferred Compensation or Payment for Extra
Work. The putative contract lacks any reference whatsoever to any
right on the part of WUT to defer the payment of compensation to
the end of the semester and contains no provision whatsoever
specifying any rate or amount of compensation for additional work
required outside the scope of the putative contract. First,
respondent never agreed to any deferred compensation arrangement
and expected to be paid monthly for services rendered the previous
month. Respondent never agreed to deferred compensation, which is
inherently unfair and offensive. Second, under Section 70 of the
Thailand Labor Protection Act of 1998 (TLPA), [a]n employer shall
pay wages . . . correctly . . . not less than once a month . . . .1
(Emphasis added.) This rule applies unless the parties agree to
another payment schedule on the strict condition that the
alternative payment schedule is in the best interests of the
employee. Thus, no contract existed with respect to any deferred
payment arrangement because it was never approved by respondent
and, even if he had, such consent would not be valid because the
deferred compensation here violates TLPA Section 70. Neither is
there any mention of the rate or amount of compensation for
additional classes assigned. Under TCCC Section 366, no contract
was formed.
1. The Thailand Labor Protection Act of 1998 is available online
at http://thailaws.com/law/t_laws/tlaw0132a.pdf.
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Drs. Stroble, Schuster, Chapman, Mrs. Chaudhuri and Mr. Avecilla
Webster University Thailand 28 October 2014 Page 5
(5) Inherent Indeterminacy of Putative Contract Terms. The terms
of the putative employment contract are in perpetual flux and lack
any fixity whatsoever if the sentence fragment that constitutes the
third paragraph of the putative contract is read as if it were
actually coherently written and the apparent intended meaning
ascribed to it. That third paragraph seems to state that WUT is
attempting to legally bind respondent to any subsequent revisions
in the Faculty and Training Policy Handbook 2004 and WUT Policies
and Procedures 2011 or any subsequent notifications issued by WUT
without any limitation whatsoever. Such a provision appears to give
WUT the right to change every term of the putative contract at will
merely by issuing a new handbook, a new set of policies and
procedures or even a mere administrative notification. In short,
the putative contract lacks any fixed terms whatsoever because the
CONDITIONS AND BENEFITS OF EMPLOMENT, as the rubric for the third
paragraph reads, may be unilaterally changed at any time in the
sole discretion of WUT and regardless of respondents consent. Since
the putative contract lack any fixed content and are inherently
indeterminate, under TCCC Section 366 there has been a failure of
agreement on all the terms of the putative contract and, so, the
putative contract was never formed and is not even a contract at
all because under the terms of the third paragraph the putative
contract would bind only respondent and never bind WUT, which is
free to change any term at will by merely issuing an administrative
notification.
(6) No Terms Concerning Courses to be Taught in Each Semester.
Finally, the putative contract apparently specifies only that a
total 7 courses constitute the REQUIRED TEACHING for the entire
two-semester term of the contract from 1 August 2014 to 31 May 2015
in the unannotated, unexplained table in the second paragraph of
the putative contract. No course names or numbers are mentioned; no
allocation of the number of courses to be taught each semester is
specified. Furthermore, there is an indecipherable cryptic
reference to Teaching overload which apparently is a course load
situation compensable in the amount Baht 81,000 per undergraduate
course. This bizarre entry in the table is never explained in the
putative contract and apparently can only be decrypted with the
assistance of a key embodied in one of the missing WUT documents
referenced in the sentence fragment that constitutes the third
paragraph of the putative contract. Clearly, essential terms,
descriptions and explanations concerning the courses respondent was
obligated to teach and how they were to be allocated over a
two-semester putative contract term are utterly lacking. Thus,
under TCCC Section 366, no contract was formed.
I replicate my arguments above to underscore the point that I do
not accept the validity of the putative employment contract that
was inflicted upon me and, therefore, am not subject to the
arbitrary and capricious administration of WUT policies and
procedures by biased and personally embroiled WUT administrators.
I, therefore, implore you and your colleagues at WUSL to end your
passive toleration of WUT administrative abuses and please
intervene in this case to secure a sensible, expeditious resolution
to the dispute in the best interests of WUT, WUSL and the affected
students of WUT because if
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Drs. Stroble, Schuster, Chapman, Mrs. Chaudhuri and Mr. Avecilla
Webster University Thailand 28 October 2014 Page 6 this dispute is
left in the hands of biased, personally embroiled WUT
administrators, it is almost guaranteed to end up in protracted
litigation at vastly greater cost to WUT and WUSL than my modest
settlement request. Please get involved. Please do not defer to WUT
administrators. Please reconsider the position you have taken in
your last email in light of the arguments I have presented in this
letter. For your future reference, in case you and your colleagues
do decide to assume a more active role in my case, if for no other
reason that it deeply affects the reputation and future of both WUT
and WUSL, I would like to underscore that my primary demand of
payment in the sum of 146,100 baht (about US$4,500) on 31 November
2014 must be met by WUT administrators to avoid even greater
damages to me than have already occurred. The longer WUT delays and
stonewalls me, the greater my damage claim will become and the more
difficult it will be to reach an out-of-court settlement. If
payment is not made in the reasonable amount I have requested in
light of all I have had to endure at WUT, I will reluctantly be
forced to robustly pursue every available civil remedy to the
fullest extent allowed by law. While I understand that you are new
to my case and I understand that located in another country on the
other side of the world it may be hard for you to grasp the
complexities of the situation here, but I can assure you based on
my personal experience with local WUT administrators you and your
colleagues need to take an active role in resolving this dispute to
avoid escalating liability exposure and legal risk. Please note
that I have appended a copy of your 28 October 2014 email reply to
this letter and labeled it Appendix A for your ease of reference. I
have also attached for your convenience as Appendix B another copy
of my one-page 6 August 2014 putative employment contract. Thank
you for your kind consideration. I look forward to your reply.
Sincerely,
Dario Navarro Former WUT Lecturer cc: Craig Mundle,
[email protected] Webster University Campus Review Team,
[email protected]; Dr. Ratish Thakur,
[email protected]
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Drs. Stroble, Schuster, Chapman, Mrs. Chaudhuri and Mr. Avecilla
Webster University Thailand 28 October 2014 Page 7
APPENDIX A
28 October 2014 Email Reply from Dr. Grant Chapman to Dario
Navarro
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APPENDIX B