what to do if...

What to do if you think you’ve been wrongfully dismissed in Japan

6 Comments
By Jeff W Richards

Life in Japan is good. You live in a relatively new, well-maintained apartment (flatteringly, if disingenuously, called a “mansion” in Japanese) conveniently located close to the train that shuttles you to work in the city each weekday. When you first moved here to take on a new role with a Japanese company, this foreign land was exotic, unusual, exciting and — at times — maybe a little bit difficult. But you’ve settled in. Adapted.

The Japanese company that you work for may not be the most progressive in its workplace practices and culture, but you enjoy what you do and feel like you’re contributing to the company’s success. As a full-time employee, you pay into — and enjoy the benefits of — shakai hoken (social insurance), the national workers’ benefits plan that offers health insurance, a public pension and even unemployment insurance.

Unfortunately — and in a recent shocking twist — you may need to avail yourself of that last benefit after your latest meeting with the boss. Your contract, it seems, is about to not be renewed.

If you’re a foreigner living and working in Japan, we have a complete series about social benefits on our GaijinPot site:Understanding the Japanese Health Insurance System,” “Understanding the Japanese Pension SystemandUnderstanding Japanese Unemployment Insurance.

Before you do anything, take a deep breath and a step back. If you have been dismissed unlawfully there are remedies at your disposal and procedures to which employers must adhere.

What follows is a basic look at employment rules in Japan as they apply to job terminations, your rights in that regard and some options for dealing with the situation should your job nightmare in Japan come true.

You’ve been let go

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First things first. If this happens to you — a call into the office, say, informing you that you’re being fired — do not agree to anything right away. Do not say, “I understand.” Do not sign anything. It may sound drastic and overly dramatic, but it’s the best thing you can do under the circumstances.

Avoid any response or behavior that signals tacit approval. Any acknowledgment — written or otherwise — will signal to the employer that they may proceed with the dismissal process. This would include any agreement or acknowledgement of a possible payout.

I asked Kei Sumikawa, an attorney with Sumikawa Law Office who specializes in labor disputes, what should happen at this point.

First, Sumikawa reiterates that employees in this situation should not agree to nor discuss anything about severance. In fact, he says, if you think you’ve been wrongfully terminated then you should assert “that there is no termination at all.”

“In other words,” says Sumikawa, “if [a] worker insists ‘I have the right to be paid for 30 days,’ it may mean [to the employer]: ‘I agree that I was terminated, so you have to pay [me] for 30 days.’”

Employment law in Japan overwhelmingly protects the rights of employees against abuse of the system (and workers) by employers. It doesn’t matter whether you are a foreigner or Japanese — the law is clear.

That’s not to say employers here don’t find loopholes to flout the regulations. They do, and it’s quite common — especially when it comes to foreign employees, contract workers and women. What’s important is to make sure that the process is being handled correctly.

If you do follow the lead of your employer — even inadvertently — you can find yourself relinquishing those protections. Best to gather all the materials provided to you while at the same time maintaining that you do not accept or agree to the company’s position.

What to do first

As mentioned above, the rules employers must follow when dismissing an employee are very clear. The reason for your dismissal needs to be disclosed to you immediately — and in writing. As set out in Japan’s Labor Standards Act, an employer must provide an employee the reason for terminating the contract with at least 30 days advance notice of dismissal. The company is also required to offer 30 days severance pay if they let you go without proper notice.

While most likely the company will have verbal instructions and paperwork for you to sign — do not sign it. Even if there is a note about financial compensation in lieu of notice, don’t sign. If you do sign or accept, then you will have very little recourse should you decide to have the termination overturned or launch a legal challenge.

Here’s what you should do when you have a chance to collect your thoughts: check that your employer has followed some basic rules.

Note the following:

  • Has the company given a complete explanation for your dismissal in writing?
  • Has the company given at least 30 days’ notice of the dismissal in writing?
  • Has the company indicated if you will receive 30 days’ pay (on top of your regular salary) to make up for the time you would normally have worked?
  • Has the company offered you a severance package?

Know your rights

With answers to the above questions in hand, you can now ascertain your situation.

Before we move on, let’s get something out of the way: This article does not equate each pink slip with unlawful dismissal, nor are we suggesting all terminations of employees (foreign or otherwise) are suspect. The company may be well within its rights to let you or others go. This is an understandably difficult period, but we need to look at it objectively.

Japanese labor laws impose severe restrictions on dismissal of employees. A few reasons that companies definitely cannot use for firing staff are below. (These are some main rules taken from Japanese labor regulations. Depending on the specific situation, there may be other articles that apply — it’s best to consult with an employment office on rules and regulations specific to your case):

  • An employer shall not dismiss an employee during a period of absence from work for medical treatment with respect to injuries or illnesses in the course of employment nor within 30 days thereafter, and shall not dismiss a female employee during a period of absence from work before and after childbirth nor within 30 days thereafter (Article 19, Labor Standards Act).
  • An employer shall not dismiss an employee by reason of such employee’s having reported a violation of the Labor Standards Law to the relevant supervisory agency (Section 2 of Article 104, Labor Standards Act).
  • An employer shall not dismiss an employee by reason of the employee’s gender (Article 6, Equal Employment Opportunity Act). Likewise, an employer may not dismiss an employee by reason of the employee’s race or religion.
  • An employer shall not dismiss a female employee for marriage, pregnancy or requesting maternity leave (Article 9, Equal Employment Opportunity Act).
  • An employer shall not dismiss an employee for having tried to organize a labor union (Article 7, Labor Union Act).
  • An employer shall not dismiss an employee for whistle blowing (Article 3, Whistle-Blower Protection Act).

Though it’s rather vague, Article 16 of the Labour Contract Act also states: “A dismissal shall, if it lacks objectively reasonable grounds and is not considered to be appropriate in general societal terms, be treated as an abuse of right and be invalid.”

One example that Sumikawa sees quite often is companies insisting a dismissal is due to an employee’s “lack of competence” as a catch-all reason. This is something to watch out for in an employer’s explanations.

“In addition to the actual competency,” he says, “An important point for these types of cases will be whether the company had trained you appropriately.”

If, after reading the above, you feel the termination of your employment is unwarranted, then you will need to get some official and/or legal advice. It’s important to note that your rights as a foreign employee with a valid working visa are exactly the same as those of any Japanese employee at your current company.

Your options

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Your first step should be to make an appointment with an Advisor for Foreign Workers at an inspection division of the Labour Standards Department at major labor bureaus throughout Japan or a Labour Standards Inspection Office.

You can find a list (in English) of the major labor consultation centers in Tokyo on the Tokyo Metropolitan Government website. If you are outside of Tokyo, download our “Contact List of Ministry of Justice, Immigration Bureau, Immigration Information Centers” excerpted from “The Foreign Workers Handbook,” a bilingual pamphlet from Japan’s Ministry of Health, Labour and Welfare (you can also access the complete handbook on the TMG site listed above).

Advisors for foreign workers will accept inquiries and consultations about labor conditions in English and other languages — though which languages are readily available depend on the office location. You can also contact the Zenkokou Ippan Roudou Kumiai, or

National Union of General Workers National Council, an umbrella organization for different labor unions. For foreigners working in Japan, the council comprises three unions that work for the rights of non-Japanese employees:

With advice and guidance from these offices, you can find out whether it is actually a case of wrongful termination or not. If it is, you will need to get some help with having the employer withdraw the termination notice and some legal action.

Should this not work, then it’s time to visit an attorney to try to negotiate the best settlement of the termination agreement. What’s notable here is that termination of employment in Japan is regarded — legally — as a negotiated agreement between two parties,

At this point, you will want to discuss any retirement package you may have coming to you. This should be negotiated before (not after) agreeing on the dismissal terms itself.

“This is a ‘condition’ to terminate the labor agreement in the future. [It’s] not the ‘conclusion’ after the termination,”says Sumikawa. Also keep in mind that consultations with the labor offices are completely free while attorneys do charge fees — so if you just want to check simple things, it may be better to go to a labor office first and see what kind of case you have.

Many people ask how job termination might affect their visa status. Remember that your visa is issued to you by Japan’s Immigration Bureau, an arm of the Japanese Ministry of Justice. It is not issued by (or specifically for) your employer. You will generally have until the expiration date listed on the visa stamp in your passport to secure another job with a sponsoring employer or leave the country (for those without long-term visas such as permanent residency or a spousal visa).

Losing a job is a life changing experience, in Japan or anywhere else. Whether it’s due to economic downsizing, business relocation, company bankruptcy or — dare I say it — an employee’s own negligence; the ramifications are endless.

While the information in this article can’t change the course of history, perhaps it can provide some helpful options should you find yourself in a similar situation — wondering if what is happening to you is, in fact, legitimate.

In the end, this will basically come down to a personal decision: leaving Japan or staying to take action. Should you decide to stand your ground, in this article we’ve addressed government labor offices in Japan ready to assist and legal options at your disposal. Below are some more resources to help in your research. The rest is up to you.

Thanks to the attorneys at Sumikawa Law Office for their help advising us — in practical terms — on the information we put together from the Ministry of Health, Labour and Welfare and the Japan Labour Standards Bureau. Sumikawa Law Office, in Kawasaki City, Kanagawa, offers English legal assistance for foreigners in Japan in the areas of corporate law, contracts and agreements, labor disputes, bankruptcy, inheritance, divorce, real estate and more. They can be contacted via the Sumikawa Law Office site listed below.

Resources

Other articles in the What to Do if... series:

-- What to do if you are stopped by the police in Japan

-- What to do if you require medical assistance while visiting Japan

© Japan Today

©2019 GPlusMedia Inc.

6 Comments
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Great article! I am currently being power harassed and on the verge if quitting.

6 ( +7 / -1 )

I am currently being power harassed and on the verge if quitting

Join a union!

Great article overall, I'm a union member and have participated in lengthy negotiations with an eikaiwa plus been in the loop over their underhand business so I've seen and heard a lot.

One thing about this:

Unfortunately — and in a recent shocking twist — you may need to avail yourself of that last benefit after your latest meeting with the boss. Your contract, it seems, is about to not be renewed.

The article may confuse people by putting this in with being fired but non-renewal of a contract is completely different and essentially impossible to undo. All the employer needs to do is 'give a reason' unfortunately so it's very easy and is why hiring workers on 1-year contracts etc is so popular.

To avoid that situation, try and get confirmation that your employer will renew as early as possible. For a 1-year contract ask (by email, always in writing at least) at about the 6-month mark. 3-years, maybe at the second year. If they say they'll renew but then don't you'll have something against them, but be prepared to fight. If they say they won't renew it so early in you'll have time to find something else

5 ( +6 / -1 )

As set out in Japan’s Labor Standards Act, an employer must provide an employee the reason for terminating the contract with at least 30 days advance notice of dismissal. The company is also required to offer 30 days severance pay if they let you go without proper notice.

That is a heckuva lot more generous than what many other countries do with at will employment laws, meaning you could be let go at a moment's notice without any valid reason.

1 ( +4 / -3 )

Very informative. Thank you.

1 ( +1 / -0 )

Should this not work, then it’s time to visit an attorney to try to negotiate the best settlement of the termination agreement.

Better be wary of that, the attorney is gonna take a big chunk.

0 ( +0 / -0 )

good article! thank you

0 ( +0 / -0 )

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