花崗岩のテクスチャ

Labor / Employment  issues ~ severance package, dismissal  etc. and procedures for resignation including social insurance matters.

(1) Legality 

  • Encouragement to retire itself is not illegal or just encouraging employees to leave company voluntarily. So, the situation is far different from dismissal.

  • You have no obligation to leave from company by taking the encouragement to retire proposal from company. However, in case of you reject the proposal, company usually take actions such as reshuffling of personnel, assignment change etc. for discouraging you from working at the company within company’s personnel right.

  • So, such encouragement is practically used as alternative method of dismissal because Japanese labor related laws & regulations set very strict rules for dismissal.

(2) Overstepping the authorities

  •  However, such personnel right is not unlimited. If company practically forces, proposes with insistence, reshuffles abnormally and so on, these actions will be potentially regarded as inappropriate or illegal (Those actions may include power abuse, sexual harassment as well.).

  • These excessive acts or power abuse may trigger tort responsibility, criminal offense.

(3) Your actions

  • If you intend to continue to work at the company, you have no duty to sign. Simply say “No”.

  • You can go to relevant public institution.

#(For Tokyo, Labor Consultation Service for Foreign Workers can be used.

#Labor Standards Inspection Office is probably inactive or thinks out of scope because this is out of (core) Labor Standard Law matter.

  • You can contact to lawyer and lawyer will assist you for protecting your right. For example, acts by company is “too-much”, lawyer may send letter to company for warning or/and damage claim purpose.

3. Dismissal

(1) Types of dismissal

Generally speaking, there are 3 types of dismissal.

  • Ordinary dismissal

Dismissal based on Labor Contract Law and Labor Standard Law.

  • Punitive dismissal

Company imposes as punishment in case employee commits to illegal/wrongful act.

  • Dismissal of purpose for the reorganization

Dismissal in case company is in economic slump and needs to cut number of employees for business restructuring purpose. Certain standard applies for justification.

(2) Laws and regulations

  • Commonly, very strict standard applies for dismissal in Japan. The Labor Contract stipulates as “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.” (Article 16).

  • Therefore, matters of course, the company cannot dismiss employee because of personal preference (e.g. Boss A doesn’t like his/her staff), private event (e.g. Staff just got pregnant”).

(3) Criteria of fair / unfair dismissal

  • Apart from clearly or explicitly breach of law cases, those cases coming into conflict are not concluded as fair / unfair clearly. Therefore, it’s difficult to show clear standard in writing.

  • However, dismissal cases arisen by following reasons potentially include factors regarded as unfair. Employee;

​#Consulted his/her boss’s wrongdoing with HR / Compliance Department.

#Has lack of enough ability

#Ever come office late, but just one time.

#Is very active wo/man and often argue with his/her boss.

#Was hospitalized for few days by sick.

(5)Presenting the case to court

  • Lawsuit

#Fair / unfair will be cleared by judgement (But reconciliation is usually recommended from the court.).

#However, it may take quite long time.

  • Labor tribunal

​#Composed of one judge and two labor tribunal officer.

#Speedy resolution by conciliation process for 3 times.

#Cost is cheaper than filing lawsuit.

#However, transferred to the lawsuit in case of filing objection. 

4. Procedure of resignation

(1) Notice to company

  • Prior to written / official notice letter, notice to your boss is common.

  • You may have heard 2 weeks prior to resignation notice is needed and is enough. Basically, this understanding is correct, but please also see Civil Law.

#Civil Law stipulates as following.

Article 627

(1) If the parties have not specified the term of employment, either party may request to terminate at any time. In such cases, employment shall terminate on the expiration of two weeks from the day of the request to terminate.

(2) If remuneration is specified with reference to a period, the request to terminate may be made with respect to the following period of time onward; provided, however, that the request to terminate must be made in the first half of the current period.

#If you have received your salary monthly basis and want to resign company as of August 31st, August 17th is NOT enough even there are 2 weeks, but need to inform by August 15th.

  • Usually, employee checks the number of your paid holidays left and calculate timing of notice date to use all paid holidays.

(2) Notice by written / official letter

  • Notice letter format is usually available at company.

  • If company doesn’t prepare format, see website, there are many samples available with free of charge.

  • This is not ideal, but in case company refuses your resignation, sending letter by contents certified mail is one of methods employee take. Resignation itself is your right, so, apart from voluntary request, negotiation, company doesn’t have a right to prevent you from resignation.

(3) Takeover of your jobs and other
(4) At the timing of / After resignation
  • If you have already found new job, simply following instruction from new company and prepare relevant documents, that is all and relatively easy.

  • For resignation, you usually need to get following documents from company.

#Unemployment slip

#Employment insurance card

#Pension insurance booklet

#Certificate of health insurance qualification loss

#Tax certificate slip

#Certificate of resignation issued from company

  • If you are going to be unemployed, following actions will be needed and you must do it by yourself.

  • Unemployment insurance

Going to Public Employment Security Office (Hello-Work) for receiving unemployment insurance benefit.

  • Health insurance

There are 3 choices for you.

#Continue at resigned company by Free Continuation Insurance System

#Join in National Health Insurance System

Become dependent of health insurance of your family

  • Pension

There are 2 choices for you.

#Become insured person of National Pension from Employee Pension

#Dependent of your spouse

  • Certificate of eligibility

#You must go to Immigration Office within 14 days since resignation for reporting.

#Your certificate of eligibility status may subject to cancellation if you are unemployed more than 3 months.

#However, if you are seeking new jobs, this is treated as you have justification and your certificate of eligibility is not cancelled.

#If you are unemployed due to company’s convenience, you can work as part-time by getting permission to engage in activity other than that permitted Under the Status of residence previously granted.

1. Encouragement to retire

2. Using service company for resignation (“Taishoku Daiko”)

  • “Taishoku Daiko” is a service to care of your resignation arrangements.

  • If you hesitate to notice your resignation though you want to do, company strongly prevent you from resigning company, you can use such Service company.

  • However, things such company can do is just information delivery to/from company, such Service company cannot do negotiation such as claiming overtime payment, severance package payment etc., because negotiation etc. is not only informing or delivering, but including legal work. So, if such Service company does such work, it’s illegal.

  • In this point of view, hiring lawyer and request those negotiations on behalf of you is thought as safer and more certain approach. 

(4) Contacts

  • Public offices

#The Labor Standards Inspection Office

#Working condition consultation hot line

https://www.check-roudou.mhlw.go.jp/soudan/foreigner.html

#Guide to Labor Bureaus with Foreign Workers Consultation Service(Adviser for Foreign Workers)

  • Lawyer

#Lawyer works for your private consultant.

#Company usually takes more careful actions to avoid turning into lawsuit.

  • Even resignation is right, appropriate takeover is needed for smooth and peaceful resignation.

  • Company may exercise their personnel right and punish you in case you try to resign in sudden and no takeover performs. It may also bring liability for damages apart from company really charge or not.

  • If you have lending and supplying items from company, don’t forget to return. This may be abused if company has malice to you.

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