Page 290 - วารสารกฎหมาย ศาลอุทธรณ์คดีชํานัญพิเศษ

วารสารกฎหมาย ศาลอุทธรณ์คดีชำานัญพิเศษ

apply in Japan. Therefore, employers must carefully consider the following when making
work force reduction.

In Japanese companies a distinction is made between “regular employment”

and “non-regular employment.” This distinction may lead to a different treatment of
17
regular and non-regular employees in case of dismissals caused by the pandemics.

(a) Dismissal of Regular Employees

Terminating regular employees in Japan is always a difficult issue, due to the
restrictive regulatory environment and the attitude of the courts… the courts have

maintained their restrictive attitude in interpreting “just cause” for the termination of
employment; the courts will resort to dismissals only where there are no other means

of avoiding dismissal under the circumstances.
Dismissal of regular employees is restricted under Article 16 of the Labor

Contract Act (“LCA”) which provides that dismissal which is without objectively
reasonable grounds or which is inappropriate in general societal terms will be deemed

as invalid due to abuse of rights.
Despite statutory provisions that permit dismissal, in the 1950’s the courts have

developed the doctrine of abusive dismissal preventing the employers from “abusing
the right to dismiss” which gave the employees strong protection against dismissal.
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By relying on the abuse of rights doctrine, the courts held that dismissals that are not

“objectively reasonable and socially appropriate” constitute abuse of right and are
therefore void.
19
A typical view of the Japanese courts which clearly emphasizes the need to
protect job security is expressed in the Supreme Court judgment stating that “even when

17 Variations of non-regular employment are omitted here for practical reasons.
18 Nagoya District Court, 4 December 1951 (Sube v. Kariya Seikatsu Kyodo Kumiai), 2-5 Rominshu 578,
579, quoted in T. Fukui, Labor Management Relations and the Law 3-4 Law in Japan (1973); Tokyo District Court,
8 May 1950 (Iwata v. Tokyo Seimei Hoken Sogo Gaisha), 1-2 Rominshu 230, 235-36.
19 The Supreme Court, 31 January 1977 (Shioda v. Kochi Hoso K.K.) Rodo Hanrei No. 268 (1977) 17.
Quoted in: geraLd mcaLLIN, Employment and Labor, in: Gerald McAllin (ed.), “Japanese Business Law” (Alphen
aan den Rijn 2007) 403, 433.

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