Announcement

Collapse

The GaijinPot Forum Is Closed

Please join us on our new Facebook Group.
See more
See less

Top

Collapse

Breaking a contract?

Collapse
X
 
  • Filter
  • Time
  • Show
Clear All
new posts

  • Breaking a contract?

    I have a one year contract. However there a few things on it. It says it is from April 20 to March 10 and I cannot break it but it says if the school continues past March 10 I have to keep on until the schoolfinishes. So even though it is a fixed date contract would this clause make it an unlimited term contract whereby I could give two weeks notice? a mistake by the employer. Also I have renewed 2 times now so I read according to Japanese law if you renew the contract a couple of times you only have to give 2 weeks notice because it becomes an unlimited term contract.
    Does anyone know more about this?
    I studied law before coming to Japan but not Japanese law.

  • #2
    By law you only have to give two weeks notice to quit although giving a month's notice is more polite.

    The original 'no quitting' clause was unenforceable and the paper it was written on best used as as toilet paper.

    Comment


    • #3
      Originally posted by paulbochniak
      I have a one year contract. However there a few things on it. It says it is from April 20 to March 10 and I cannot break it but it says if the school continues past March 10 I have to keep on until the schoolfinishes. So even though it is a fixed date contract would this clause make it an unlimited term contract whereby I could give two weeks notice? a mistake by the employer. Also I have renewed 2 times now so I read according to Japanese law if you renew the contract a couple of times you only have to give 2 weeks notice because it becomes an unlimited term contract.
      Does anyone know more about this?
      I studied law before coming to Japan but not Japanese law.
      An employer is required to observe the terms of the contract as much as the employee. If the contract ends on certain date he can not legally oblige you to work past that date, as tecnically, you are not an employee anymore, though you still have a valid visa. You will have completed the terms of your contract and you have no legal obligation to him past that date.

      If he wants you work past that date on your contract he should push back the date till the end of March, or give you a new contract covering those extra days. Otherwise you are just working in a legal limbo.

      Comment


      • #4
        Answer: The Labor Standard Law (Rodo Kijun-ho) does not specify any notification period. The Civil Law (Mim-po), however, stipulates that you must give your employer two week's notice of your intention to resign if your contract has been fixed without a specified period (Article 627, Civil Law).
        Since your contract specifies the term of service, you are subject to the contract unless there are special "unavoidable reasons" (Article 628, Civil Law). You might encounter legal problems if you quit without giving your employer three months' advance notice. Violation of the contract by your employer or circumstances that have arisen which are beyond your control are sufficient justification for you to cancel the contract. If you fail to give three months' advance notice and quit without good reason, your employer may claim damages from you for breach of contract. Contract negotiations should include the notification period, which employers tend to make long because of the cost of recruiting foreigners and the difficulty of filling vacancies. However, the notification period should not be longer than is necessary, as this puts constrains on the employee. You should discuss the notification period with your employer before signing the contract.

        (Request for Cancellation)
        Civil Law Article 627.
        (1) When the parties have concluded a contract without a specified period of employment, either party is entitled to request that the other party cancel the contract at any time. In this case, employment will be terminated two weeks after either party has requested cancellation of the contract by the other party.
        (2) When the contract specifies the period of employment and wages, either party is entitled to request that the other party cancel the contract for the second and later terms, provided, however, that such a request is made in the former half of the current term.
        (3) When the contract specifies a period of employment of six months or more and wages, the party wishing to cancel the contract shall request the other party to do so three months in advance.

        (Cancellation of a Contract for some Unavoidable Reason)
        Civil Law Article 628.
        Even if the parties have concluded a contract with a specified period of employment, either party is entitled to cancel the contract in unavoidable circumstances.
        However, if these circumstances are the fault of the canceling party only, he/she shall be liable for damages suffered by the other party.

        Comment


        • #5
          1 Sorry but my questions are since the contract has from 10 th April to 10 March written but also says if the school continues past the date you have to continue until the school finishes, has the contract legally speaking been turned into a unlimited term contract?
          2 Since I have renewed 2 times isn't my contract treated as an unlimited term contract anyway?
          3 so therefore isn't it Ok to give 2 weeks notice?

          Comment


          • #6
            paulh:

            You are assuming that the contract is enforceable as a fixed-term contract. I think that it was drawn up in such an ambigous manner that a judge would rule that it was not so.

            OP: Why not contact the General Union and get their opinion?

            Comment


            • #7
              I know I am going to get clobbered for this, but if you have a fixed term contract (ie, one year) that has been renewed a few times (my magic number is three years total service), you should be treated as a permanent employee. This means that you can give your employer two weeks notice and the terms of your contract do not apply.

              The company can't make you contract both a fixed term contract AND an unlimited term contract. If they do this, your contract can be considered invalid.

              Now, according to the Yokohama Labor Standards Office, the laws concerning an employee's status with the company has changed a little bit. Although it is not illegal for the company to hand you a contract every year, it IS illegal for them to treat you as a "contract worker". This means:
              - If you want to leave the company, regardless of what the contract says, you can leave with 2 weeks notice.
              - If the company decides they don't want to renew your contract, they have to give you a valid reason. "Non-renewal of contract" is not valid.
              -If the company decides to let you go 1 day before your contract expires, they HAVE to give you 30 days payment in lieu of notice of dismissal.

              (Trust me on this. The guy at the Yokohama Labor Standards Office knows me almost by name. My lawyer would also tell you the same. I think the guy's name is Mr. Koseki. You can reach him on Tuesdays and Thursdays.)

              I'm not trying to diss the union or anything, but I found that there were discrepancies between what the union told me and what the LSO told me. The LSO even gave me the new information underlined in Japanese and told me to show my manager so I could get my 30 days pay.

              Comment


              • #8
                [QUOTE=honey]I know I am going to get clobbered for this, but if you have a fixed term contract (ie, one year) that has been renewed a few times (my magic number is three years total service), you should be treated as a permanent employee. This means that you can give your employer two weeks notice and the terms of your contract do not apply.
                QUOTE]

                Not clobbered but questioned. The 3 year period is not so certain. It is all based upon precedence. A woman was recently ruled to have the rights of a permanent employee after only one year. In other cases it has been more than 3. It is only a rule of thumb.

                And to gain those rights you actually have to sue for them. So in effect, unless you are willing to fight, 1, 3, 5 years means nothing.

                Comment


                • #9
                  Iwantmyrightsnow,

                  Have you ever heard of a KARISHOBUN lawsuit? It takes between 3 and 6 months for a decision, so it really doesn't matter if the lawsuit goes on from 1-5 years because the company has to pay the employee's salary while the lawsuit is going on. That is a very good incentive to fight for your job back.

                  Comment


                  • #10
                    Originally posted by honey
                    Iwantmyrightsnow,

                    Have you ever heard of a KARISHOBUN lawsuit? It takes between 3 and 6 months for a decision, so it really doesn't matter if the lawsuit goes on from 1-5 years because the company has to pay the employee's salary while the lawsuit is going on. That is a very good incentive to fight for your job back.
                    Yes, I am aware of it. And sometimes it is worth fighting for, sometimes it isn't. Just because you win the injunction doesn't automatically mean you will win the case (a good indication though). If not you will have to repay all the money paid while the case goes on. I was basically just meaning sometimes a job isn't worth fighting for and sometimes it may not be all that clear you will win and It is not a simple task.

                    But I would encourage people to fight for the principal if they have the energy. It is not a simple task and takes balls to do it.

                    Comment


                    • #11
                      Sorry, Iwantmyrightsnow, but this is not correct. What lawyer told you this? What case have you heard this happen with? I think this is very rare. If you win a karishobun lawsuit, the money you get until final decision is yours to keep because the court has essentially said you are an employee of the company until the lawsuit is over with. I think you are confusing this with provisional unemployment insurance. Say you are fired suddenly and decide to sue. You can get provisional unemployment insurance while you fight your case which means that if you win your lawsuit (the injunction part), you have to pay the unemployment insurance back because technically you were employed and receiving income from your job. If you lose the lawsuit (the injunction part), you don't pay anything back. Now, I can see where the company could make a claim for the labor injunction money, but I don't really see that. (a labor lawsuit is actually two suits in one a)karishobun-temporarily stop the action and b) the lawsuit for a status: employed person).

                      Additionally, during the labor injunction, the company has the right to order you back to work at anytime, since they are paying you your salary and the court has basically said you ARE an employee of the company until the lawsuit is over. So, iwantmyrightsnow, is the company going to get their money back if the employee goes back to work EVEN if their case is still going on in the court? Me don't think so...

                      THIS is why so many companies have severence packages...because they would rather pay the worker 6 months severence rather than 2 years wages plus lawyer fees.

                      I don't really see why it takes balls to sue a company that dismissed you. It doesn't take any more balls than to go to a union or start over again and find another job. A lawyer is pretty easy to get if you know where to look and they are very, very reasonable. Some will give you a significant reduction on your retainer while others will work pro bono. There are lots of lawyers out there that will give you a free consultation and there are also offices that are available to match you with an appropriate lawyer. If you want to sue, it is required BY LAW that you be provided with the appropriate legal representation.
                      Last edited by honey; 2005-03-19, 02:10 AM.

                      Comment


                      • #12
                        Hiya Pauli B! A Big Bronx Cheer to you Sucker!

                        Why the hell are you coming on to gaijinpot crawling up people`s asses for free help and advice when according to your peanut brained self folks who work here teaching English are `loosers`.

                        You`re just another troll, son, maybe you are downtown or that loser who claimed to be studying English in Japan forever although he said he was a foreigner! He also said anybody with a paying job here teaching English is a `loser`.

                        Go get some advice somewhere else `looser`!

                        Comment


                        • #13
                          Naisu

                          Originally posted by 2paclives
                          Hiya Pauli B! A Big Bronx Cheer to you Sucker!

                          Why the hell are you coming on to gaijinpot crawling up people`s asses for free help and advice when according to your peanut brained self folks who work here teaching English are `loosers`.

                          You`re just another troll, son, maybe you are downtown or that loser who claimed to be studying English in Japan forever although he said he was a foreigner! He also said anybody with a paying job here teaching English is a `loser`.

                          Go get some advice somewhere else `looser`!
                          I was never big on your music, but I am a huge fan of your posts.

                          From that English Teachers are Loosers thread, we all figure it's downtown jerkoff brown, back for another round.
                          Lets all play ignore the idjit?

                          Comment


                          • #14
                            Breaking contract

                            I am 6months through my 2nd contract term with my eikaiwa. I have decided for various reasons that I want to leave the company. Is this possible. And how much notice is appropriate. I got a bonus for re-signing this year. Will my boss ask for that money bacK, does she have the right to, and do I have to pay it back?
                            Thank you in advance.

                            Comment


                            • #15
                              Originally posted by girlygirlinjapan View Post
                              I am 6months through my 2nd contract term with my eikaiwa. I have decided for various reasons that I want to leave the company. Is this possible. And how much notice is appropriate. I got a bonus for re-signing this year. Will my boss ask for that money bacK, does she have the right to, and do I have to pay it back?
                              Thank you in advance.
                              Check the Japanese Labor Law, it is quite employee-friendly : http://www.jil.go.jp/english/laborinfo/library/Laws.htm

                              Article 1.2. The standards for working conditions fixed by this Law are minimum standards. Accordingly, parties to labour relations shall not reduce working conditions with these standards as an excuse and, instead, should endeavour to raise the working conditions.

                              Determination of Working Conditions
                              Article 2. Working conditions should be determined by the workers and employers on an equal basis.

                              Contract Violating This Law
                              Article 13. A labour contract which provides for working conditions which do not meet the standards of this Law shall be invalid with respect to such portions. In such a case the portions which have become invalid shall be governed by the standards set forth in this Law.

                              Ban on Predetermined Indemnity
                              Article 16. An employer shall not make a contract which fixes in advance either a sum payable to the employer for breach or contract or an amount of indemnity for damages.

                              Ban on Offsets Against Advances
                              Article 17. An employer shall not offset wages against advances of money or advances of other credits made as a condition for work.

                              Notice of Dismissal
                              Article 20. In the event that an employer wishes to dismiss a worker, the employer shall provide at least 30 days advance notice."

                              So this clearly states that it's enough to give 30 days notice (it only talks about the employer in Art 20, but here the 'equality rule' of Art. 2 seems to apply. I also clearly says that no 'penalties' can be allowed. That would also affect the 'sign up' bonus, but better look more carefully whether any conditions were attached to it. Of course, they may try to cheat you by trying to ask you to pay it back, but as you already have it, they would need a court order and from the legal side, it would be very unlikely that they can enforce it.

                              Comment

                              Working...
                              X