Employment Dismissal

[ckmonster]

A fairly popular topic in this forum. However, I still have some unanswered questions. My questions:

1. Where and how can I get sound legal advice and support for relatively little cost. There are some 'free' legal aide offices, but it seems to be oriented for people with no income. I'm not sure if I qualify and I'll need someone who can go to court. (One lawyer I talked to wanted a 500,000 retainer fee. I haven't that type of money in my bank for quite a while now. I believe someone once mentioned in this forum that I can get sound legal advice for about 10,000 yen a month while I'm waiting for my case to come to court

2. I have heard that I am supposed to be continue paid while I am challenging my dismissal. Is this so? How can I insure so?


I was the guy who posted on 'resignation negotiation'. For those of you curious, we finally got talking about things, they offered me nothing that I wouldn't get anyways, ( 1 months pay, while I still come to office) I said I needed substantially more than that. No budging and then yesterday this letter. But it's certainly not over!

[paulh]

1. Where and how can I get sound legal advice and support for relatively little cost. There are some 'free' legal aide offices, but it seems to be oriented for people with no income. I'm not sure if I qualify and I'll need someone who can go to court. (One lawyer I talked to wanted a 500,000 retainer fee. I haven't that type of money in my bank for quite a while now. I believe someone once mentioned in this forum that I can get sound legal advice for about 10,000 yen a month while I'm waiting for my case to come to court
!


Im sure you dont need reminding, but lawyers here dont work for free, legal aid or pro bono work is virtually unheard of. As a foreigner my guess is they will only take on cases they think they can win.



2. I have heard that I am supposed to be continue paid while I am challenging my dismissal. Is this so? How can I insure so?
!

Might have to check the union website, but if you refuse to accept the firing legally you are still employed by them. They can put you in a corner and give you nothing to do and still have to pay you. May be a good idea to check with the labor standards office.


AI was the guy who posted on 'resignation negotiation'. For those of you curious, we finally got talking about things, they offered me nothing that I wouldn't get anyways, ( 1 months pay, while I still come to office) I said I needed substantially more than that. No budging and then yesterday this letter. But it's certainly not over!


They are not legally required to pay you anything more than one months salary in lieu of notice. if you want more you have to take it to court but you have no money to do that. Arent you just getting greedy in seeking compensation? This is not the US where disgruntled employees get golden handshakes.

If you belong to a union you may be able to get them to negotiate and they may pay up to get rid of you but i doubt it if you are fighting it on your own.

[paulh]

Before we try to answer this question it is important for you to understand one important piece of advice. If you feel that you have been unfairly fired, don't sign anything (it may be a statement saying that you quit) and call the union immediately.
The Labour Standards Law states very simply that except in the most extreme of circumstances (you punch your boss, an earthquake destroys your workplace), an employer must give 30 days' notice or thirty days pay in lieu of notice. If you are fired, it is relatively easy to get this (Articles 19, 20).
The part of the law that is difficult are the many Japanese court rulings and Ministry of Labour guidelines on the propriety of firing someone. In Japan it is very difficult to fire someone in the middle of their contract (or workers who have an unlimited term contract) or someone with a one year contract which has already been renewed many times. 'Very difficult' means that in a civil court, unless the firing is done for "socially acceptable reasons" (which is up to a judge to decide), a firing could be overruled.
The problem with these precedents and guidelines is that the Labour Standards Office either won't enforce them or in many cases is powerless to do so. So unless you are prepared to go to civil court there is very little an individual can do to stop an unfair firing.
If you are fired call the union immediately and we can examine your situation. As stated in the Trade Union Law Q & A, a union can negotiate anything with an employer even if you are the only union member at your company.
On the other hand if you believe you have been fired for your union activity, we have many other ways to help you outside of the Labour Standards Law. Please see the General Union Q & A on the Trade Union Law.
If you are fired, remember one very important thing: tell the company that you don't accept their decision, offer to continue working, and make it clear that you are willing to work. Don't sign anything and don't try to one up your company by stating that you quit. The reasoning for this is that if you accept your firing or if you say that you quit, legally you are accepting it and it will make it more difficult to deal with this in the future.

[ckmonster]

Paul,

Thank you for the reply. All good points. Yes, I know the norm is for lawyers to work for money. (and at a high rates) My question was oriented to what I have read here on this forum before. Something like having legal support for about 10,000 yen a month. I may indeed talk to the union, but I that's a different angle that I was inquiring above.

Actually what I received was a 'preliminary' notice of dismissal. So, we're still in negotiation. It's also interesting to note that it cited some work rules that I never saw before. Perhaps they were in Japanese, but yet clearly not easily understandable to me before.

Greed is perhaps relative. I think a few months of pay is not too much to ask for leaving a stable job, especially considering all the harassment and maybe even discrimination involved. Even in Japan, I think this is worth fighting for, especially since a lot of those salary saps would never challenge such a thing.

ck

[paulh]

Sorry

I dont want to sound contrarian, but article 23 of the Labor Standards law states that he is legally obliged to pay you one months salary if he wants to fire you instead of give you one months notice. He is under no legal obligation to pay you compensation or damages you may feel you have suffered.

From the general union website

"Last week my boss fired me and told me to leave. He said he would pay the 30 days' dismissal allowance. Today he called me and ordered me back to work from tomorrow for the remainder of the 30-day period. He said I'm still an employee, and that I must obey him. Is he right?
No. If he wants you back to work, he must withdraw the firing completely. The employer-employee relationship ended on the day he fired you; the 30-day dismissal allowance is not a month's salary, it is an allowance which must be paid within 7 days of the firing (Article 23). The only problem here is proving that he really told you not to come to work again. He may claim later that he simply gave you 30 days' notice of dismissal. If you have documentary evidence, or a tape-recording, you will almost certainly win your case through the Labour Standards Office or in a Small Claims case at court."


For what its worth I belong to the union in Osaka, and have often sought advice from the union on behalf of people. You are of course free to negotiate and bargain with your boss by yourself but this is the unions position if you should go that route and have no luck with finding a lawyer or 'legal aid':

Your employer may be taking advantage of the fact you are not Japanese, dont know or understand Japanese labor law and you dont know what your rights are and what you are entitled. the union officials do, and the guys that do the negotiating have over 25 years exe
If you sign anything or agree to whatever your employer offers in the way of bargaining etc you put yourself in a weak position, something the union can not undo if you go to them later after having dug a big hole. many people get into trouble and then go to a union to get them to bail them out. I dont know the specifics of your case, but the union could easily say they will not help you.

I dont know anything myself about the small claims court, but that may be an avenue worth pursuing as well.

[paulh]

This may be of use, with some info about Legal Aid in Japan

http://www.jlaa.or.jp/index_e.html

[paulh]

Another link on legal aid, but somehow I dont think it covers contract disputes and dismissals.

http://www.nichibenren.or.jp/en/about/affiliat.html