Entwicklung und Perspektiven im japanischen Kündigungsrecht bei Schlecht oder Minderleistung
Abstract
In Japan the number of cases where employees’ contracts have been terminated by regular notice because of low performance is on the rise. The criteria, however, according to which courts determine whether a dismissal on grounds of conduct has been illegal pursuant to Article 16 of the Law on Employment Contracts are unclear. Japanese rules on termination are tailored towards the traditional custom of long-term employment (chōki koyō kankō). They provide for a comparatively strong protection for regular employees (sei-shain), who have been employed long-term without a precise job description or specification of qualifications on the one hand and a rather weak protection for skilled employees (senmon-shoku) or executives (kanri-shoku), who have been employed to perform a specific task or because of a specific qualification. For the latter, the employer’s duty to avoid termination by means of relocation does not apply because the employer lacks sufficient contractual authority to do so.
This article seeks to analyze the Japanese law of termination, which does not provide for sufficient legal certainty, and seeks to propose new rules by examining the German approach. Protection against cancellation should be based not only upon the right of existence (Art. 25 Japanese Constitution), which emphasizes the economic interests of the employee, but also on the idea of human dignity and self-determination (Art. 13 Japanese Constitution) and the right to work (Art. 27 para. 1 Japanese Constitution), which takes into account the personal interests of the employee as well. This approach accommodates the growing change of awareness amongst employees as well as changes in employment practice.
Moreover, the author attempts to transplant the German principles of proportionality and prognosis into the Japanese law of termination. According to the principle of proportionality, an employment contract can only be terminated if the violation of contract by the employee is severe and leads to considerable loss for the employer. When judging the employees behavior objectively, it is necessary to determine whether the employer or a colleague is (partly) responsible. Furthermore, it is necessary to consider whether a less severe measure (e.g. relocation, warning or re-training) has been applied prior to termination, being a precondition for it to be valid. The principle of prognosis calls for an evaluation of possible future improvement of the employee’s behavior. It is to be complemented by the principle of fault, which takes into account the degree of fault by the employee.
An adoption of these proposals would in principle require Japanese employers to give employees a warning prior to termination, thereby openly addressing the violation of contract. In case the employer demands improvement of performance by the employee or a specific result of his work, the employer needs to take the appropriate measures, for example an evaluation of working methods, clarification of the causes for trouble and promotion of a shared awareness of the problem. The warning is only dispensable in cases where a future change of behavior seems impossible or where the violation of contract is so severe that it allows for a termination without notice. That right is restricted to cases where the employee has intentionally and severely harmed the employer and where the employer bears no contributory negligence regarding the violation of contract.
Japanese law of termination consists both of the said material rules that include a final weighing of the interests of both parties, as well as procedural rules, mainly those of Articles 20 and 22 of the Labor Standards Law.
Skilled employees or executives – contrary to regular employees – usually need a certain special qualification and therefore can be let go more easily when falling short of average performance. They cannot be easily relocated either, which is why their contracts can be terminated more easily. Both of these aspects are problematic from a legal perspective. The principles of proportionality and prognosis should be applied in these cases as well and employers should thus be obliged to propose relocation or re-training to skilled employees and executives by means of amending the contract, even though it contains a specific job description. Moreover there should, at least in principle, be no difference in requirements for or content of a warning aimed at regular employees, skilled employees or executives.
The Japanese law of termination should be re-adjusted by introducing all the measures discussed above.
(The Editors)
