Abuse of the right to dismiss 解雇権濫用

The doctrine that makes dismissal in Japan so hard. Also written kaiko, kaikoken ranyo, unfair dismissal.

Japanese law lets an employer dismiss an employee with 30 days' notice or 30 days' pay in lieu. That part looks simple. The difficulty is Article 16 of the Labour Contract Act, which codified decades of case law: a dismissal that lacks objectively reasonable grounds and is not appropriate in general social terms is an abuse of the right to dismiss, and invalid.

Courts apply this strictly. Poor performance usually needs documented warnings, training and a real chance to improve, often over a long period. Redundancy dismissals are judged on four factors: whether the business need is real, what was done to avoid dismissal, whether selection was fair, and whether employees were consulted. Dismissal is also prohibited outright during certain periods, such as leave for a work injury or maternity leave and the 30 days after.

If a dismissal is invalid, it is void. The employee is still employed and is owed pay for the whole period. Most disputes settle, frequently in the labour tribunal system, for a sum that reflects how weak the employer's case was.

What it means for a foreign employer

Sources

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General information for employers, not legal advice. Thresholds and dates are checked against the sources listed and dated above; confirm anything you act on with a Japanese employment lawyer or a licensed labour and social security attorney.