\u3010Case Study\u3011<\/p>\n
X, a foreign worker, was born and raised in Country A and, after graduating from a Japanese university, joined Company Y, a large Japanese company, as a new graduate. In nearly 30 years, X has never once received a warning or disciplinary action, and is now a senior manager. One day, X was called in by a senior executive and told that a report had been made of sexual harassment and power harassment against subordinates, and that X would be suspended until the investigation was completed. X denied engaging in any such conduct and attempted to respond, but was not heard, and one month later was given a disciplinary dismissal.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n
Japanese labor law applies to foreign employees in the same way as to Japanese employees, regardless of nationality. This article focuses on \u201csuspension\u201d and \u201cdisciplinary dismissal\u201d triggered by a harassment report. For how to contest a dismissal afterward and the impact on your visa, please see \u201cSERIES 3-01.\u201d<\/p>\n
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\u3010Conclusion First: Four Key Points to Keep in Mind\u3011<\/strong><\/p>\n \u2460 A company cannot dismiss you merely because \u201ca report was made.\u201d The company must properly verify the facts.<\/p>\n \u2461 An investigation conducted without hearing your side of the story is problematic.<\/p>\n \u2462 Even during a suspension for investigation purposes, wages are, in principle, paid.<\/p>\n \u2463 Where you have had no disciplinary record for many years, there is room to argue that suddenly choosing disciplinary dismissal is \u201ctoo harsh.\u201d<\/p>\n <\/p>\n Q1.Am I not paid while I am suspended?<\/strong><\/span><\/p>\n A1. In principle, you are paid. This is because a suspension for investigation purposes (home standby) is, in many cases, not a penalty but an instruction given for the company\u2019s own reasons. If the work rules provide otherwise, a reduction may be permitted, but even then, the principle is that at least 60% of average wages is paid. Confirm in writing whether the \u201csuspension\u201d is a disciplinary action or an instruction for home standby, and be sure to check your pay slips as well.<\/p>\n <\/p>\n Q2. My side of the story was not heard. Is that not a problem?<\/strong><\/span><\/p>\n A2. It is a problem. Under Japanese government guidelines, when a company investigates harassment, it should hear not only from the person who made the report but also from the person who was reported, and if their accounts differ, it should also hear from the people around them. An investigation that determines the facts based on only one side\u2019s account is less likely to be found credible in court. At interviews, communicate your position not only orally but also in writing.<\/p>\n <\/p>\n Q3. Is X\u2019s disciplinary dismissal valid?<\/strong><\/span><\/p>\n A3. There are serious doubts about its validity. In Japan, the bar for dismissal is very high, and for a disciplinary dismissal based on harassment, the following three points are particularly important.<\/p>\n \u2460 Whether harassment actually occurred (whether the company can prove it with evidence)<\/p>\n \u2461 Whether dismissal is too harsh (whether, in light of the nature of the conduct, the employee\u2019s work record, and disciplinary history, another lighter disciplinary action would suffice)<\/p>\n \u2462 Whether the procedure was fair (whether the employee\u2019s side was heard, and whether the procedures in the work rules were followed)<\/p>\n X\u2019s side was not heard (\u2462), and despite 30 years with no disciplinary record, the most severe sanction\u2014dismissal\u2014was suddenly chosen (\u2461). However, since the conclusion may change depending on how egregious the conduct was, it cannot be said that the dismissal is \u201cdefinitely invalid.\u201d<\/p>\n <\/p>\n Q4. I was told, \u201cBecause this is a disciplinary dismissal, you will receive neither pay in lieu of notice nor a retirement allowance.\u201d<\/strong><\/span><\/p>\n A4. You do not have to accept this as it is. To dismiss an employee immediately without paying pay in lieu of notice, the company must obtain official approval from the Labor Standards Inspection Office to dismiss without notice. In addition, even if the work rules state that \u201cno retirement allowance shall be paid in the case of disciplinary dismissal,\u201d court precedents tend to allow complete non-payment only where there has been an act of serious misconduct that outweighs the employee’s many years of service. For X, who has worked for nearly 30 years, the retirement allowance is a major issue. Request a certificate of reasons for dismissal from the company, and have the company specify the grounds for the disciplinary action in writing.<\/p>\n <\/p>\n <\/p>\n Contact Us<\/span><\/strong><\/span><\/p>\n In our Japan Business Law Guide, we will continue to share useful information tosupport your business expansion and operations in Japan. <\/p>\n <\/p>","protected":false},"excerpt":{"rendered":" \u00a0 \u3010Case Study\u3011 X, a foreign worker, was born and raised in Country A and, after graduating from a Japanese uni … <\/p>\n
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