How-tos | LIFELINES

I've been unfairly dismissed — what can I do?

by Seiji Yamaura

‘I was dismissed yesterday after my salary was given to me,” writes G.B. “The manager told me that by using a lot of paid leave last month, I had disrupted the workplace and demonstrated my lack of ability to do the job, so they had to discharge me.

“However, I only took seven days’ paid leave to go back to my home country. I think I had around 10 days’ paid leave, since I had worked for this company for one year and three months as of yesterday. I want to make the company withdraw my dismissal or get compensation from them. What options do I have?”

You should bear in mind that there are strict requirements regarding employee dismissal in Japan, as defined in the Labor Contract Law and clarified in subsequent rulings by the Supreme Court. These requirements have proven to be a formidable hurdle for companies seeking to dismiss employees. The bottom line, though, is that your dismissal would be invalid if it is not based on reasonable grounds.

If you have not accepted your dismissal verbally or in writing yet, what you need to do first is write a document stating that you refuse to accept your dismissal. If you don’t do this, when you take your case to the courts or a labor relations commission, they could argue that you did not have any complaint about your treatment at the time of dismissal.

You could be reinstated or gain compensation based on the following reasons: wrongful termination or denial of procedural due process.

Wrongful termination

The reason for your dismissal, according to your manager, was the negative effect of your leave on order in the workplace, which apparently somehow reveals your lack of ability. This reasoning would not be justifiable by law, however, as all you did was exercise your legal right to take days off. Also, taking paid leave does not reflect on your ability to do the job at all. Thus, I think we can safely say that your dismissal is not based on reasonable grounds.

On the issue of leave, the Labor Standards Law stipulates that any employee who has worked in a company for six months with at least 80 percent attendance is entitled to 10 days of paid leave. A year after their first six months, he/she would gain additional paid leave. So, in your case, you should have had at least 10 days of paid leave, of which you say you have used seven.

If you want to take your paid leave, you can exercise your right whenever you want unless your period of leave would cause major disruption to your company; and even in that kind of case, your company should come to an agreement with you to grant you paid leave at another time. If your company did not inform you of a very compelling reason why you could not take paid leave at the time you did, you were entitled to take it.

Denial of procedural due process

Even if your dismissal was based on reasonable grounds, your company may have skipped certain steps they need to take before they can terminate your employment. Whenever a company dismisses or disciplines its staff, it must give the employee a warning before taking any action, to give the worker a chance to fix their behavior and thereby avoid the disciplinary measure. In other words, the company should have warned you first. In addition, they should have notified you about your dismissal a month before the date it was to take effect, or paid you one month’s salary up front instead.

If you want to return to work at the company or to compensation for being illegally terminated, here are three of the options open to you:

1. Trial

You can sue in the District Court for both reinstatement and compensation, or in the Summary Court for compensation only.

If you really want to be reinstated at your company at the same level of seniority as when you were dismissed, this could be the better choice. Although the process could take at least a year, the strict formality of the trial and the careful examination of the case by the judge could work in your favor, giving you more of a chance of being reinstated.

2. Industrial tribunal

An industrial tribunal (rōdō shinpan) is a kind of fast-track trial designed specifically to tackle work-related cases, combining elements of a regular courtroom trial with mediation.

Industrial tribunal cases are heard by a district court judge and two labor-relations referees, one representing the interests of labor, the other management. Although sessions are held at Dictrict Court, the procedure is more casual than a regular court case. Since two referees with different perspectives from the judge would examine the case, there is a good chance of the two parties reaching a reasonable settlement.

3. Labor relations commission

Labor relations commissions (rōdō i’inkai) — which, like industrial tribunals, also involve a three-man panel, comprised of a neutral figure and representatives with labor and management backgrounds— were covered extensively in last month’s Labor Pains column (“Three amigos on a mission to protect your rights,” July 27, by Hifumi Okunuki).

None of the above processes require that you take on a lawyer, but I would suggest that you retain one for any case involving the courts (including the industrial tribunal option). If you cannot afford one, you can take advantage of legal aid offered by Houterasu, the Japan Legal Service Center (www.houterasu.or.jp/en)

Seiji Yamaura is an attorney with the Foreign nationals and International Service Section at Tokyo Public Law Office, which handles a wide range of cases involving foreigners in the Tokyo area (www.t-pblo.jp/fiss; 03-6809-6200). FISS lawyers address readers’ queries once a month. Your questions and other comments: lifelines@japantimes.co.jp