JAPAN Law and Practice Contributed by: Junichi Ueda, Etsuko Hara, Nobuto Shirane, Takahiro Hayase, Yutaka Shimoo and Miki Goto, Anderson Mori & Tomotsune
In addition to the above-mentioned extra wages, an employee working between 10pm and 5am is entitled to an extra payment in accordance with a late-night work compensation at the rate of at least 25% of the normal salary per late-night
or mental disability or extremely poor perfor - mance; • infringement of the disciplinary rules in the workplace by the employee’s serious miscon - duct; • redundancy; • termination due to an agreement with a trade union; or • termination due to an employer’s liquidation if an employer is a corporate entity. In addition, the employer must give the employ - ee at least 30 days’ prior notice of the unilateral dismissal or make payment in lieu of the notice (LSA, Article 20). Except as agreed in an employ - ment contract or the rules of employment, an employee is not entitled to any other monetary compensation upon a unilateral termination of A unilateral dismissal due to redundancy may occur where an employer wishes to continue business operations in Japan with a reduction in the number of employees. In this case, the employer must demonstrate an “objectively legitimate and socially justifiable cause” for the dismissal by satisfying all of the following fac - tors. • The shedding of employees is justified by a strong financial or business necessity, such that it would be extremely difficult for the employer to continue its business without implementing a reduction in the number of employees (and not merely the fact that the employer would be more profitable if the employees were dismissed). • The employer has already endeavoured to take all reasonable means to avoid dismissal of employees, such as facilitating intra-com - pany transfers (or, in some cases, associated- employment. Redundancy
working hour (Article 37 of the LSA). Employees in Managerial Positions
Employees in managerial positions are entitled to receive an extra wage for late-night work but are not entitled to receive extra wages for statutory overtime work and work on statutory holidays (Article 41 of the LSA). Whether an employee is in a managerial position depends on various factors, such as: • the actual content and nature of the work performed by the employee; • the authority, responsibility and manner in which work is performed; and • the salary and other compensation. The scope of employees in managerial positions is generally quite narrowly interpreted based on judicial precedents. 4.4 Termination of Employment Contracts Unilateral Dismissal in General When an employer unilaterally dismisses an employee, the employer must have an “objec - tively legitimate and socially justifiable cause” for the dismissal (Article 16 of the LCA). Otherwise, the dismissal is deemed to be an abuse of right and would therefore be null and void. There is no doctrine of employment at will in Japan. It is gen - erally understood that the following five reasons constitute an ”objectively legitimate and socially justifiable cause” for a unilateral dismissal: • inability of the employee to offer their labour to an employer, mainly because of physical
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