Die krankheitsbedingte Kündigung und das Kündigungsschutzrecht in Japan

Insbesondere bei psychischer Erkrankung

Abstract

In recent years, there has been an increase in the number of legal conflicts in Japan in relation to terminations of employment contracts because of illness, and, in particular, mental illness. Most cases concerned the issue whether an objectively reasonable ground for dismissal existed, the lack of which would render the termination socially inappropriate and make it an abuse of rights under Art. 16 Labor Contracts Act. The contribution analyzes Japanese case law and academic opinion with respect to terminations of employment contracts due to mental illness and shows possible ways of regulating such dismissals in a way that is justified and guarantees a higher level of legal security.

The analysis of Japanese case law shows that until now, the Japanese courts have decided on the validity of dismissals by assessing the principle of abuse of right by taking into consideration all circumstances of the case in question. The author concludes that while this approach might lead to an appropriate solution for the individual case, there is no legal security due to a lack of a decision norm. As for the regulation, the author advocates that the sanctioning character of a dismissal by reason of illness ought to be denied, because a termination ends the employment contract with prospective effect. He recommends that shared standards used by the courts in assessing a dismissal be remodeled as express rules of general application on the basis of the principles of proportionality and of prognosis that are inherent in the right to terminate. In this respect, the “necessary measures” of the new regulation on employment promotion of persons with disabilities allow the content and scope of the employer’s right of dismissal to be explained and extended. As a consequence, terminations in a wider set of circumstances could be found to be invalid, namely where such “necessary measures” are not taken. The duty to take such measures is justifiable on the principles of proportionality and of prognosis. Moreover, the employers ought to offer, of their own accord, measures less drastic than a dismissal, such as reduction of the employees’ tasks or a transfer on the basis of the constitutional rights of employees.

(The Editors)