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Japón - Requisitos de fondo para el despido

Requisitos de fondo de despido (motivos permitidos y prohibidos) - Japón - 2018    

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Obligación de motivar el despido :
  • Upon request of the dismissed employee, the employer shall issue a certificate indicating the reason for dismissal in writing and without delay, i.e. between the advance notice and the last day of employment (art. 22, LSA).

Motivos autorizados (despido justificado) : cualquiera justa causa
  • Under the Civil Code, both parties can terminate an employment contract of indefinite duration at will provided that two weeks' notice is given (art. 627, CC).
    However, the freedom of the employer to dismiss an employee has been restricted by the Japanese courts which have developed the doctrine of abusive dismissal based on the basic principle of prohibition of abuse of rights enshrined in art. 1(3) CC. The 2003 amendment to the LSA codified this long-established case-law under art. 18-2 LSA. Since the entry into force of the Labour Contract Act (2008), art. 18-2 LSA has been deleted from the LSA (see suppl. provisions - art. 2) and the prohibition of abusive dismissal is now to be found in identical terms in art. 16 LCL. This provision reads as follows: "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 rights and be invalid".

    Although there are no listed statutory grounds for dismissal, they are generally included in collective agreements and/or in the workplace rules (Shugyo-Kisoku). Art. 89 (iii) LSA requires the employer to include in the workplace rules matters pertaining to termination of employment, including grounds for dismissal. These rules must be established in all enterprises employing ten or more workers.

    With the 2012 amendment to the LCA, certain jurisprudence (of the Supreme Court) on abusive refusal to renew FTCs became legal provisions (Art.19, LCA as amended, which entered into force upon its publication: 10 Aug 2012): “the Employer's refusal to accept the said application [for a renewal of a FTC] lacks objectively reasonable grounds and is not found to be appropriate in general societal terms, it is deemed that the Employer accepts the said application with the same labor conditions as the contents of the prior fixed-term labor contract” when: (i) the said FTC has been repeatedly renewed in the past, and it is found that terminating the said FTC by not renewing it when the contract term expires is, in general social terms, equivalent to an unjustified dismissal of a non-FTC worker; or (ii) it is found that there are reasonable grounds upon which the said Worker expects the said FTC to be renewed when it expires.

Motivos prohibidos : estado civil; embarazo ; licencia de maternidad; presentación de una queja contra el empleador; enfermedad o accidente profesional temporal; raza; sexo; religión ; origen social ; nacionalidad ; afiliación sindical y actividades sindicales ; denuncia de violaciones
  • * Art. 19 LSL prohibits dismissal:
    - during the absence of an employee because of work-related illness and 30 days thereafter; and
    - during an employee's statutory maternity leave and 30 days thereafter.
    If an employee is dismissed during the above-mentioned periods, such dismissal will be void.

    * The Act on Securing, Etc. of Equal Opportunity and Treatment between Men and Women in Employment (1973, as amended in 2006) prohibits dismissal based on sex (art. 6), marriage, pregnancy, childbirth, and requesting maternity leave (art. 9).

    * Article 7 of The Trade Unions Act (1949, as amended in 2005) prohibits dismissal based on trade union activities and membership.

    *Art. 104 LSA prohibits an employer from dismissing an employee on the grounds that he or she reported violations of the Labour Standard Act to the Inspecting authority.
    Specific laws regulating certain aspects on employment also contain provisions on the prohibition to dismiss a worker for reporting violations of these laws to the competent authority (i.e. the Industrial Safety and Health Law, 1972, amended in 2006: art. 97 and the Security of Wage Payment Law, 1976, amended up to 2002: art. 14).

    *See also the Whistleblower Protection Act (2004), art. 3 on the nullity of dismissal of a whistleblower.

    * In addition, Art. 14 of the Japanese Constitution prohibits discrimination in political, economic or social relations on the grounds of race, creed, sex, social status or family origin.
    More specifically, art. 3 LSA prohibits discriminatory treatment with respect to wages, working hours or other working conditions on the grounds of the nationality, creed or social status of any worker. Although political opinions is not listed as a prohibited ground in art. 3 LSA, it has been held that the term "creed" includes both political and religious beliefs(1).
    "Nationality" is also generally interpreted to include the concept of race(2).

    ((1) see Tadashi A. Hanami, Fumito Komiya: 'Japan', in R. Blanpain (ed.): International encyclopaedia for labour law and industrial relations (The Hague, Kluwer Law International, 2006), § 220, p. 137).
    (2) Idem, citing the Hitachi Seisakujo case, The Yokohama District Court, 1974, HJ, No. 744, p. 29.

    The 2018 amendment to the Part-time Workers Act (the tile will change to Part-time and Fixed-term Workers Act) will enter into force on 1 April 2020, except that for small and medium-sized enterprises on 1 April 2021, including the following changes:

    Section 24 (2) of PT-FT Act prohibits dismissal and other unfavourable treatment of a FTC worker (as well as of a part-time worker) for the reason that the worker has requested support from the Directors of Prefectural Labour Bureaux such as advice and recommendation for dispute resolution regarding their treatment.

    Section 14 (3) of the same Act also prohibits dismissal and other unfavourable treatment of a FTC (or part-time) worker for having requested information to the employer regarding their treatments (on the difference in treatment compared to regular workers and reasons for it) in accordance with Section 14 (2).

Trabajadores que gozan de una protección particular (fuero): mujeres embarazadas o con licencia de maternidad ; trabajadores con licencia temporal por enfermedad
  • See art. 19(1) LSA which prohibits an employer from dismissing a woman while on maternity leave of six weeks prior to (14 weeks in the case of multiple pregnancy) and eight weeks after the childbirth, and 30 days thereafter.
    [As exception, however, dismissal is possible, if the enterprise is unable to continue its activities as a result of a natural disaster or some other unavoidable circumstances provided that the employer has obtained prior authorization from the Labour Standards Inspection Office].

    Note that art. 19(1) LSA also apply to workers which are absent from work for a result of illness or injury incurred in the course of work, and for 30 thereafter.

    See also art. 9(4) of the Act on Securing, Etc. of Equal Opportunity and Treatment between Men and Women in Employment (1973, as amended in 2006) which provides for a special protection against dismissal during pregnancy and maternity leave, as it stated that: "Dismissal of women workers who are pregnant or in the first year after childbirth shall be void." However, this protection is not absolute since "it does not apply n the event that the employers prove that dismissals are not by reasons prescribed in the preceding paragraph [pregnancy, childbirth and requesting maternity leave]".