Japanese law places the highest priority on worker protection.
The daily efforts of employees are essential to improve the efficiency of operations, but there are cases where employees do not feel motivated and, in extreme cases, have become the “burden” of the company.
However, from the perspective of worker protection, employees are heavily protected in Japan, and it is not easy to fire them. What conditions must be met in order to justifiably dismiss a regular employee?
What are the different types of dismissal?
First of all, there are three types of dismissal: ordinary dismissal, disciplinary dismissal, and liquidation dismissal.
Ordinary dismissal is based on Article 16 of the Labor Contract Act, and can only take place “when there is an objectively reasonable reason and the dismissal is deemed reasonable in terms of socially accepted ideas.
Disciplinary dismissal refers to dismissal with the implication of imposing sanctions for problematic behavior on the job and violation of employment regulations.
In addition, dismissal for liquidation is the same as restructuring, which is to dismiss a company as a way to liquidate its workforce when the company is in financial difficulties.
In this section, we will take a closer look at the conditions for ordinary dismissal and disciplinary dismissal.
What are the conditions for dismissal to be approved?
I mentioned earlier that ordinary dismissal requires “objectively reasonable reasons and reasons that are considered reasonable under socially accepted norms.
In concrete terms, reasonable grounds for dismissal and what is considered reasonable in terms of socially accepted norms include: extremely low work-related ability, extremely poor cooperation that hinders work, and continuous absenteeism due to illness or injury.
Reasons for disciplinary dismissal include serious criminal acts such as embezzlement, prolonged absenteeism, falsification of personal history, and sexual or power harassment.
Reasons for disciplinary dismissal are also included in the category of reasonable cause and socially acceptable content.
What should I be careful about when dismissing non-regular employees?
When dismissing non-regular employees such as temporary workers, part-timers, and part-timers, one thing to keep in mind is whether or not it is a “fixed-term labor contract.
A fixed-term labor contract is a labor contract with a fixed term, while a contract without a fixed term is an “indefinite term labor contract.
In the case of fixed-term labor contracts, in accordance with Article 17 of the Labor Contract Act, dismissal is not allowed until the end of the contract period, except in cases where there are compelling reasons.
Unavoidable reasons include embezzlement of money, sexual harassment, and power harassment, which are synonymous with reasons for disciplinary dismissal.
The reasons for ordinary dismissal, such as “extremely low ability and cooperativeness,” do not fall under the category of unavoidable reasons for dismissal of fixed-term labor contract employees, so it is safer to wait for the end of the contract period and resign by not renewing the contract.
It is important to note that in the case of an indefinite term labor contract, just as in the case of dismissing a regular employee, you cannot dismiss a non-regular employee unless there is a reasonable reason or content that is equivalent to socially accepted norms.
When dismissing an employee, advance notice of dismissal is required.
When dismissing an employee, it is necessary to give at least 30 days advance notice of dismissal.
This is stipulated in Article 20 of the Labor Standards Law, and is intended to prevent unfair dismissal.
However, giving advance notice of dismissal to an employee may reduce the motivation of the employee being dismissed, which may in turn reduce the motivation of the employee working with him/her.
In order to prevent such a situation, it is possible to dismiss an employee on the same day the dismissal is announced, provided that 30 days’ wages are paid. This is called “immediate dismissal.
Dismissing an employee is not an easy thing to do, but it is allowed only when there are compelling reasons.
However, it is important to note that if the proper procedure is not followed, the employee may claim “unfair dismissal”.
For this reason, it is important for the company to show a legitimate reason for the dismissal, inform the employee that the dismissal is unavoidable, and show good faith in the dismissal.