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Tuesday, Oct. 4, 2011
Unfair dismissal: the legal options
By MASAKO SUZUKI
Reader MB was recently fired from a private language school he'd been working at for five years.
"No reason was given when this was made known to me — I was, however, asked to teach the remaining four to six weeks of the current term.
"When I asked the manager, he used a 'decline in numbers of students' excuse (classes are opened based on how many students apply) for the dismissal, although no more or less of my own proposed classes failed to open than other teachers', and a number of my students have taken classes for several years with me — a fact all the other teachers in the department agreed upon.
"Nothing has been presented in writing to explain the school's reasons. In addition, I have now been told that I will not be paid for my last month's work unless I sign a document guaranteeing I will not speak or write on my firing. I'm not willing to sign this."
As you write that you were "fired," I assume you were either an employee working under a contract (keiyaku-shain) and your employer dismissed you before the end of that contract, or that you were a permanent employee (seishain). Presuming either of these situations is correct, you may have two cases against your employer. One is regarding dismissal, the other wage payment.
1. Dismissal: According to the Labor Contract Act, a dismissal shall, "where the dismissal lacks objectively reasonable grounds and is not considered to be appropriate in general societal terms, be treated as a misuse of that right and invalid" (Article 16). Given the manager's explanation that the school dismissed you because of a decline in number of students, the point is whether the dismissal can be justified for the purposes of reorganization.
Four requirements for this kind of dismissal have been established by judicial precedent, which are: a) necessity of cutback in personnel (e.g. the employer is facing financial difficulty); b) fulfillment of efforts to avoid dismissal (e.g. directors' remuneration has already been cut and staff have been offered voluntary retirement); c) the selection of employees to be dismissed must be "appropriate"; and d) the procedure followed for the dismissal must also be appropriate (e.g. explanation and discussion of the reasons). From your explanation of the case, it seems that your dismissal may not satisfy all these criteria, and could therefore be considered invalid.
Incidentally, in the event that the dismissal is legal, the employer should provide at least 30 days' advance notice or pay your average wage for a period of no less than 30 days.
2. Payment of wages: Wages must be paid in full directly to the workers, says Article 24 of the Labor Standards Act. Setting conditions for the payment of wages, such as signing a resignation document, is illegal. You are entitled to request full payment of wages for your work.
Your next steps: You can request that the employer deliver a certificate stating the cause for dismissal. According to Article 22 of the Labor Standards Act, an employer has to supply such a certificate promptly upon request. I recommend you make this request since it is important to make the employer specify the reasons for dismissal as soon as possible, so that they cannot claim different plausible grounds for the decision later.
Also, you should clarify your intention to keep on working for the employer and let your employer know that you are not willing to sign away your right to request payment of wages after the dismissal.
To settle the dispute, you can call upon local government offices such as the Labor Bureau, Labor Administration Office and the Committee for Dispute Settlement. Although you can report the problem of unpaid wages to the relevant Labor Standards Bureau, it will not deal with the question of the validity of your dismissal.
It is also possible to ask a lawyer to negotiate with the employer, or bring the case to court with or without a lawyer. If you choose to take the court route, it is possible to start the litigation without taking any prior action. Alternatively, you can use the Labor Tribunal System, which is designed to ensure fast-track settlements of individual labor disputes in court.
In a labor tribunal, a panel consisting of a professional judge and two experts on labor issues — one from the labor side, the other from management — come up with a conclusion (settlement of mediation or delivery of a decision) within three sessions. In litigation, a professional judge or judges make the decision, but there is no limit on the number of sessions this may take.
In your case, I recommend you try negotiation or the Labor Tribunal System before litigation, as your claim should be relatively easy to justify based on what you have told me, and you may be able to settle the case reasonably quickly through mediation or an agreement.