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Tuesday, Dec. 21, 2004
THE ZEIT GIST
Louis Carlet answers more readers' questions on job troubles and labor law in the Japanese workplace
By LOUIS CARLET
Bullying and dismissal
I've been working for a private university for almost eight years. During that time, I have put up with constant "ijime" from two other teachers, who finally got their way and are having me fired. No reason was given for my firing.
My question is do foreigners ever win lawsuits in Japan? I see myself suing for the ijime and unfair termination. I would also seek monetary damages for all that money I put into the retirement fund that I'll never see.
Is it even worth the effort to see a lawyer?
FOREIGNERS CAN and do win lawsuits in Japan.
You will have to demonstrate that the dismissal is unfair ("futo-kaiko"), while the university will have to show it was fair. Expect it to drag on for quite a while -- anywhere from a few months to several years. Also the result may be a financial settlement rather than reinstatement. Of course, you might lose too.
To bolster your case, you should immediately begin doing "shuro toso," or reporting each day for work in order to demonstrate your intention and willingness to continue to work. You will need to bring a piece of paper each day explaining that you are willing to work and that you refuse the dismissal.
In general, it is difficult to win damages for mental stress as it is very difficult to prove the cause conclusively.
I started a job in August working for a company that were launching their English program. My probation finished at the end of September, and since then I asked several times for my contract, health insurance card etc. The company finally gave me my contract, for 2 years, at the beginning of December.
The next day, I was told that I was being "let go" as there were not enough students.
I was given a month's notice and am still at the company working the last month. My questions are:
* CanI be made redundant the day after signing a 2-year contract?
* Am I entitled to any compensation?
* My last day to work is Jan. 2 -- but this will fall within our New Year holiday period. Can you confirm that I am entitled to be paid for the week I am off?
This week I have taken 2 days off with stress-related illness. My contract says I am entitled to sick pay. What can I do if my company refuses to pay me for these two days?
* Is the contract still valid even though I have been given notice, ie. for sick days etc?
Also, my company told me I was off probation on Sept. 21, but later backtracked and said I was in fact on three months' probation. This means I did not have any health insurance for this time. Can I report my company for this?
ONE OPTION would be to fight to compel your company to honor the contract. Even if the company has a compelling reason for firing you, it will be expected to give you some compensation for not honoring the contract. If it becomes a dispute, you will likely be fighting for a percentage of the rest of the contract, although you can also fight for reinstatement.
You can use non-binding arbitration at the (Labor Relations Board), but you will need to belong to a union to do this.
Of course, you can sue in court with a lawyer, although you should probably calculate court and lawyer costs against the money or job you might win.
Last March, a Tokyo ward, which had directly employed about 20 ALTs for its junior highs, fired all of us and contracted a dispatching company to find their ALTs.
After their announcement, they sent a letter asking us to resign. I refused to sign. Might we be owed some compensation?
IF THEY fired you without notice, you are due one-month's pay in lieu of notice ("yokoku teate").
In April, I started with a staffing company, working as an ALT at an Elementary School.
Everything was going well, until September, when I had to be hospitalized. For a week or so, my company called me daily to ask about my condition. I sent them a doctor's note. After a week, I got out of hospital, and agreed to go into work after a couple of days' rest.
I received an e-mail from the company, telling me not to worry about work that week, as they had arranged a temporary replacement.
However, on the Sunday before I was due to go back to work, I received a letter, informing me that I was being fired for taking time off without reasonable cause and without warning the company I would be absent. To make things worse, I was not paid wages due to me.
After being unable to contact the manager for weeks, I gave him an ultimatum by e-mail: either pay me, or face the Labour Bureau.
He called me, and said that he had had a meeting with the owner of the company, who had come to the conclusion that I should not be paid, as they had had to pay for a replacement for the time I was not working.
Not only that, what ever happened to the one-month advance notice of termination of employment, or, in cases where this is difficult, one month's pay in advance, as stipulated in Japanese Labour Law?
What do you think I should do?
THIS READER raises two issues: dismissals for sickness and unpaid wages.
As in most countries, courts generally uphold an employer's right to dismiss an employee who is sick so often as to be unable to perform work duties. The question is of course, how often is often enough to justify dismissal.
A week or so in hospital would not reasonably be considered sufficient grounds for dismissal, but there are no clear guidelines.
Employers generally are permitted to deduct wages during the period the employee cannot work under the principle sensibly named "no-work-no-pay," but further penalties may not be deducted regardless of the cost to the company of a replacement and so on.
At the same time, employers must pay for all work -- up to the minute -- that an employee actually works, regardless of dismissal or reasons for dismissal. This is true even if an employee walks off the job without notice and even if the employee performs poorly.
An employer in principle may deduct "penalties" from wages only under three conditions: It is for a legitimate reason; the offense and the amount of penalty are explicitly stated in the employment contract or official work rules ("shugyo kisoku"); and the penalty(ies) does/do not exceed 50 percent of a day's pay or 10 percent of a month's pay.
Does a labor broker has the right to keep incentives given by the company for workers with perfect attendance just because it is not in the contract between worker and the broker?
Breaking a contract
I am a contracted employee at a company in Tokyo, and I am currently in my second year of a one-year contract.
However, I have been offered another position and would like to leave my current company early.
While I realize this would mean breaking my contract, how soon do I need to give notice? Is it within my legal rights to quit before the contract period is up?
WHEN CAN you walk? This is a good question. The first thing to do would be to look at your employment contract. It may stipulate how much warning is required. One month is common.
The next question is: Can you violate it and get away with it? In most cases, yes.
An employer has no right to deduct wages for leaving with insufficient notice because such a deduction presupposes victory in a damages suit. In order for an employer to win damages, she must first pay the entire wage, up to the last minute of work, then sue.
In the suit, she must demonstrate financial damage caused by the insufficient notice, something usually difficult to do in Japanese courts, where the bar for proof is high.
Note that the above response puts ethical questions aside.
It is considered common courtesy to try to give your employer as much notice as possible. In my personal opinion, two weeks should be enough to make the necessary arrangements.
I have been working for a very good company as a consultant for more than 10 years.
As the company has grown over the years, contracts were written up a few years ago. This year's new contracts have come out recently.
Since I have been at the company longer than most, I am entitled to the highest pay for a job I do in the summer.
It was decided by the boss, that my salary would be cut. I have approached the administration and was told basically . . . take it or leave it. I was told that they thought the salary was inflated and needed to be trimmed down.
Is there anything I can do about this?
THIS IS called "furieki henko," or a deterioration of working conditions. In principle, an employer may not unilaterally -- without negotiation -- change an employee's wages or other working conditions, particularly for the worse.
In practice, it happens all the time as employers often try to impose their will without regard to the rights of workers.
If you are willing to fight such a deterioration in conditions, at the risk of losing your job, then you should refuse the change explicitly or ask that you negotiate any changes.
If your employer ignores your demand, then bill him for unpaid wages in the amount of the difference. To collect, you can go to the Labor Standards Office ("rohdoh-kijun-kantoku-sho") and Summary Court ("kan-i saiban").
Your employer may not share your enthusiasm for protecting your rights, so he may harass you or fire you. If he fires you, you will have to demonstrate in court that he fired you in retaliation for your asserting your rights.
He will have to show he fired you for legitimate reasons, and he will dig up lots of other reasons.
So you will have to decide whether or not you want to fight despite the attendant risks. A strong labor union can help you in any case.
Starting a union?
Seven of us who teach at a university in Tokyo would like to start a labor union, but many of us are afraid the university will refuse to renew the contracts of members of the union next April. What should we do?
THIS IS tough one to answer. It depends on many factors. First of all, it depends on how many of you plan to band together (more the better). Another big question is how much solidarity do you have (more the better). Another one is how many years each of you has been at the university (more the better).
Under Japan's Trade Union Law, your employer is prohibited from discriminating against you in any way because of your union membership or activities, including dispute actions and strikes. That doesn't mean the university won't discriminate. It just means it can't legally.
A non-renewal is a gray zone in labor disputes. Labor unions generally consider any unwanted employment termination a dismissal. Employers prefer the term "non-renewal" because they're not required in principle to provide a legitimate reason.
One way to establish a non-renewal as a dismissal (requiring a legitimate reason) is to show that the renewal process has become a formality ("keigaika-sareteiru").
Louis Carlet is deputy secretary of the National Union of General Workers Tokyo Nambu. Send your comments and questions to: firstname.lastname@example.org