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Tuesday, Sep. 11, 2012
Three steps to judging whether a disciplinary measure is legal
By MASAKO SUZUKI
An English teacher writes: "Recently, my company placed me on a three-month suspension from work, until five days before my fixed-period employment contract expires. As I am still employed, I cannot claim unemployment benefits, and this lengthy period makes it almost financially prohibitive to remain in Japan.
"This year, my 10th at the company, I became a declared union member. When I sought clarification via my union as to the grounds of the suspension, I was told it was for deviating from a scheduled lesson plan and incorporating an NHK report on the new English curriculum for 5th- and 6th-graders into my classes. The video, mostly in Japanese, was a 25-minute feature I showed to four 45-minute classes one morning. The company stated that I did not provide a 'rational explanation' for my behavior.
"I gave management an hourlong presentation/walkthrough of the lesson and an explanation of why I chose to deviate from the lesson plan, which was to provide students with 'peer mirroring,' i.e., to show how other students across Japan, in the same program, participate in class, and also how the teaching staff vary (Japanese home room teachers, American and Filipino ALTs (assistant language teachers), etc.) and how the teachers' methods vary, despite working from the same text.
"The content of the video also framed the 'outsourcing' of education to employment agencies as detrimental to the educational needs of students. My company objected to this. My Japanese was not good enough to understand the NHK studio report, but I could deduce the classroom-content sections.
"My question, simplified, is: Can employers suspend without pay, for this amount of time,on one instance of a misdemeanor like this?"
In cases such as yours involving disciplinary action, there are three important points to bear in mind.
First, according to judicial precedent, the company must have rules of employment where articles regarding disciplinary actions are laid out clearly, and the company must make these known to employees.
Second, the disciplinary action must be based on "objectively reasonable grounds" and conform to "current social standards." If the sanction fails this test, it would be considered an abuse of the right to take disciplinary action and therefore illegal.
Finally, due process is also required to make a disciplinary action valid.
In your case, it would be possible for the company not to pay an employee during their suspension if there is an article in the firm's rules of employment that mentions this as a possible sanction.
However, that does not mean the company can suspend you from work for as long as they want. Though there is no direct limit on periods of suspension in laws related to labor, the period must be deemed appropriate.
In cases where suspension from work is unpaid, this issue would be examined very strictly, as the sanction is effectively withdrawing the most fundamental requirement of work: the payment of wages.
To ascertain whether your suspension from work is legal or not, it is necessary to confirm the following points:
• First, you should check if the rules of employment include articles regarding suspension from work, and that they have been made known to the workers. To satisfy the latter requirement, the firm must display or post them at all times in a conspicuous location in the workplace, distribute written copies, or record them on media at each workplace in such a way that the employees can check the rules at all times (Article 106, paragraph 1 of the Labor Standards Act and Article 52-2 of the Ordinance for Enforcement of the Labor Standards Act).
• Second, you should check if your behavior qualifies according to the rules of employment as possible grounds for suspending an employee from work. If it does, you should then weigh up (perhaps with the help of your union and/or a lawyer) whether the disciplinary action against you — that is, the three-month suspension — would be considered legally "acceptable" considering what you did. In general, since the period of three months is long, the behavior that prompted the disciplinary action would have to be very serious to be considered legally valid. To examine this point, it is important to confirm exactly what behavior the company based their action on.
• Finally, you should check what procedures were taken to decide the disciplinary action. Giving the employee an opportunity to explain their behavior — as you apparently were — is considered a minimum requirement. The opportunity should be substantial, effectively meaning that a grilling by management is not enough.
The disciplinary sanction against you — that is, a three-month unpaid suspension from work — is not legally valid unless it satisfies all of the above requirements. Although I cannot say for sure in your case based on the information you have provided whether they have or not, it would be worthwhile looking into this carefully.
Masako Suzuki is an attorney with the Section of Legal Assistance for Foreigners at Tokyo Public Law Office, which handles a wide range of cases involving foreigners in the Tokyo area. TPLO lawyers address readers' legal concerns on the second Tuesday of the month. Website: www.t-pblo.jp/slaf. Phone: (03) 5979-2880. Send questions to firstname.lastname@example.org