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My five-year job won't hire me next year, need legal advice.
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eiyosus



Joined: 07 Mar 2006
Posts: 22

PostPosted: Thu Nov 14, 2013 7:43 am    Post subject: My five-year job won't hire me next year, need legal advice. Reply with quote

Just got some bad news today, so this post is gonna be a bit "cold," if you know what I mean.

I've had the same job for the last five and a half years, which is working at a private high school. I was just told today that they wouldn't hire me next year because "I'm not putting in enough effort." My first three contracts stated that I had 20 personal days I could take off, but the contracts for the last two years haven't even said anything about personal days.

Last year I took a lot of days off because my three-year-old son was often sick and my wife just started a new job, so she couldn't take any time off. Unfortunately I went over my days by one, and I was reprimanded for it and apologized.

At the beginning of this year, I was told I would be watched to see if I would get hired next year, but wasn't given any sort of criteria of what that actually meant. I assumed it meant that as long as I didn't miss more than 20 days, I would be fine.

I've missed five days of normal class this year, plus a few more during days when there haven't been any students at school. This is the same way it's always been. They've always been pretty easy going about me taking time off during days when there aren't any classes.

I told them that I wasn't aware of what criteria I was being evaluated on, and that my contract doesn't say anything about personal days. I also made it known that I stay late after school almost every day for club activities, and don't shirk any of my duties, and came to work sick last week because I didn't want to miss class. This is the same school that employs a woman who's schizophrenic and doesn't do anything but surf the internet all day.

I don't know what the legalities are, but I've heard of some law that states that after working for a company for five years, you must be made a long-time employee (which I wasn't. Just a yearly contract again this year). I've also heard that a company cannot fire an employee without a very big reason. I've just gone over my contract, and there's nothing I've broken in it, nor have I ever caused any sort of problem at school other than missing too many days last year.

I feel like telling them to just write down an arbitrary number of days they don't want me to miss. I mean, the last teacher told me I had twenty personal days, and my contract said this until they removed any reference to it. They told me, and I quote "Your contract doesn't have a set number of personal days, but we feel like you've missed too much." Jeez, all they needed to tell me at the beginning of the year was "If you miss five days of class, you're not working here next year."

I have no idea what sort of legal action I can take, if any, nor if I even have a case. I live in Kobe, and I've heard about a company that works on foreign cases like mine (my friend had to do it a while ago), but Google isn't giving me any results.

I'm thinking about requesting another meeting with the principal, now that I'm not so blind-sided by this, but maybe it's completely in their right not to hire me, since I'm only working on a year-by-year basis. But I'm not sure what to do at the moment.

Any advice would be GREATLY appreciated (thanks for reading this far)!
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mitsui



Joined: 10 Jun 2007
Posts: 454
Location: Kawasaki

PostPosted: Thu Nov 14, 2013 9:06 am    Post subject: Reply with quote

They can get rid of you if they want but I think you have a case.
You will need a good lawyer.
Probably a bilingual one. Lawyers aren`t cheap.

Probably they just want to hire someone new since they can pay less.

The new law states that after five years, companies should hire workers.
So you have a case.

You could contact the Kobe branch of the Hyogo Labor Board.

I was let go after eight years as a secondary school teacher. I did not sue since my wife told me that if I lose the case then I would have to pay.
Back then (2009) there were no laws to protect me but now there is.

You can get up to 20 personal days a year, but it depends on how long you have been there. I used to take mine when class wasn`t in session, but of course anyone can get sick.
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mitsui



Joined: 10 Jun 2007
Posts: 454
Location: Kawasaki

PostPosted: Thu Nov 14, 2013 9:08 am    Post subject: Reply with quote

You should look up the Nambu Osaka branch.
Join their union.
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rtm



Joined: 13 Apr 2007
Posts: 397
Location: US

PostPosted: Thu Nov 14, 2013 9:26 am    Post subject: Re: My five-year job won't hire me next year, need legal adv Reply with quote

eiyosus wrote:
I don't know what the legalities are, but I've heard of some law that states that after working for a company for five years, you must be made a long-time employee (which I wasn't. Just a yearly contract again this year).

Apparently, the 5-year thing only applies to contracts which begin on or after April 1, 2013. Contracts which began before that don't count toward the 5 year continuous employment period.

Quote:
I've also heard that a company cannot fire an employee without a very big reason. I've just gone over my contract, and there's nothing I've broken in it, nor have I ever caused any sort of problem at school other than missing too many days last year.

It doesn't sound like you are being fired, but rather that your contract is not being renewed. There's a difference.

Another part of the new labor laws regards employers refusing renewal of fixed-term contracts, such as yours. Some information is here and here:

An excerpt:
Code:
The doctrine of refusal of renewal

This amendment, which became effective on 10 August 2012, enshrines into law a doctrine already established by case law that applies to an employer’s  refusal to renew a fixed term employment contract. The amendment clarifies that, notwithstanding the expiration of a fixed period of employment, the employer may not refuse to renew a fixed period of employment agreement without a justifiable cause in either of the following circumstances:

(i) the fixed period of the employment contract has been repeatedly renewed and the refusal to renew is deemed as equivalent to dismissal of a permanent employee based upon social convention, or

(ii) there is a reasonable cause for the employee to expect, at the time of expiration of the period, that the employment contract would be renewed.

Court precedents indicate that the existence of a reasonable expectation of renewal will be determined holistically based on the course of hiring, employment, or past renewal(s). For example, if an employer has treated the fixed term contract as a mere formality, and has not gone through proper procedures for renewal (for example, by relying on an automatic renewal clause in an employment contract), or has entered into an employment contract on the basis that the employee will work for more than the fixed period (this can be evidenced by the employee’s entitlement to annual leave based on his/her years of service, the employer’s right to review salaries annually, etc.), and has repeatedly renewed the term.


So, you might have a case based on this, depending on the details of your situation.

Quote:
I mean, the last teacher told me I had twenty personal days, and my contract said this until they removed any reference to it. They told me, and I quote "Your contract doesn't have a set number of personal days, but we feel like you've missed too much." Jeez, all they needed to tell me at the beginning of the year was "If you miss five days of class, you're not working here next year."

Obviously I know it's easy to say this now, after the fact, but it might have been good to clarify the number of days you are allowed when you noticed that it was no longer stated in the contract, especially after you had already run into some problems regarding the number of days you took off in the previous year. Your assumption that you had 20 days was, it seems, not correct.

Quote:
I'm thinking about requesting another meeting with the principal, now that I'm not so blind-sided by this, but maybe it's completely in their right not to hire me, since I'm only working on a year-by-year basis. But I'm not sure what to do at the moment

If it were me, I would start by trying to talk with them again, and seeing if they will give you another shot. I'm not sure you would want to stay there only because you [threatened to] start a lawsuit against them -- that would definitely sour the working environment.
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eiyosus



Joined: 07 Mar 2006
Posts: 22

PostPosted: Thu Nov 14, 2013 12:11 pm    Post subject: Reply with quote

Thanks for the help so far, everyone. I've emailed the general labour union to see what they have to say.

I plan on pleading my case tomorrow in a very non-accusing and cooperative tone, but I'll certainly bring up the fact that I haven't broken my contract. I won't bring up any legal stuff for the time being.

Any more advice is certainly welcome. I'll update as things progress.
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Inflames



Joined: 02 Apr 2006
Posts: 403

PostPosted: Thu Nov 14, 2013 4:17 pm    Post subject: Reply with quote

Before the new law, companies had a high burden to prove to not renew someone after their third year (the idea being that if you were a bad employee, they would have let you go earlier). The new law basically says that, if you've been employed somewhere for 5 years, you have the right to be employed as a seishain (as others have stated, the clock started April 1st). They can't renew you for any reason and they couldn't before - companies have lost court cases on this (if you need proof, search for Nova and Kara Harris). Moreover, if they want to non-renew you they have to actually show they tried to remedy the situation (for example, they told you your lessons were bad and made suggestions).

I would figure that the second the OP brings in a lawyer the school will offer to cough up some money - personally, I'd take it and run (but I'm not married with a kid)
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mitsui



Joined: 10 Jun 2007
Posts: 454
Location: Kawasaki

PostPosted: Thu Nov 14, 2013 11:37 pm    Post subject: Reply with quote

At best, you could get some money.
At worst, you have to pay if you lose a suit.

Once they want you out, are you sure you want to stay?
I guess it depends if you could find a better job.
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Pitarou



Joined: 16 Nov 2009
Posts: 894
Location: Narita, Japan

PostPosted: Fri Nov 15, 2013 1:11 am    Post subject: Reply with quote

On the face of it, you have a case. Three things count in your favour:

1. It sounds like the rehiring process is just a matter of, "Okay. We'll keep you on for another year."

2. You've been there for more than 5 years.

3. The school is private. (The government doesn't extend the same level of protection to its own temp staff.)

I guess your first move should be to go to the Labour Standards Bureau. That's the limit of my knowledge.
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eiyosus



Joined: 07 Mar 2006
Posts: 22

PostPosted: Fri Nov 15, 2013 6:20 am    Post subject: Reply with quote

Thanks again for the replies. I had a meeting today with the principal, and this time with the head of the English department present and translating.

I pled my case, but to no avail. They kept switching the reasons between me missing too many days, and that "six years is enough, and it's time to get a new face," but mostly because I missed too many days. The principal told me that he doesn't think he should have to tell people of how many days they can miss.

I cited specific examples of how I improved when prompted, and showed them my big pile of English letters the students have written to me throughout the years, but it didn't matter. There was more back and forth which I won't get into since I doubt any of you guys are interested in hearing it.

The reason why I want to keep this job is because it's the best paying job I can get with my current certifications (and I like it, of course. I wouldn't have put in all the extra hours if I didn't like it).

I'm having a meeting on Monday with the General Labor Union, so we'll see what they have to say.

The only good thing out of this is that the English staff is as shocked as I am, and is in complete disagreement.

Thanks again.
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Jagariko



Joined: 14 Oct 2013
Posts: 16

PostPosted: Sat Nov 16, 2013 3:42 am    Post subject: Reply with quote

eiyosus wrote:
"six years is enough, and it's time to get a new face," but mostly because I missed too many days. The principal told me that he doesn't think he should have to tell people of how many days they can miss.


The thinking in a lot of cases is that English teaching jobs for foreigners are temporary which might go some way towards the "new face" comment. Perhaps the principal envisages a young and enthusiastic teacher and your having (naturally) turned into someone older and experienced is counting against you.

An acquantaince of mine had to turn down a full-time job at one place as, even though he had permanent residency and a family, he wouldn't be given insurance cover as the job was deemed "a temporary one for foreigners".

I'm sure the time off is the thing that is really the problem, though. There is no point in talking about what your contract states as it is not viewed in the same legally binding way that it is in a lot of other countries. The principals comment about "not having to tell you" is very telling: if you were continously late or taking days off in, say the UK, it would be mentioned and you would be told to sort it out before disciplinary action started. In Japan that doesn't happen as it is assumed that you know when you should arrive etc. I remember one hapless person announcing "Yes, I was sometimes late but I was never reprimanded about it and then they didn't renew my contract because they said I'd been late!" Everyone knows you shouldn't be late so there isn't the need to state it.

I was told once during an appraisal that I'd been late several times in one month and so I reminded my boss that that was during the time I was recovering from an accident and was using crutches. That was met with a blank stare and I learnt from it that a Japanese employee would have made sure they were still on time crutches or not!

Also, rightly or wrongly, don't forget you are working in a country where mothers mainly look after the children so it probably wouldn't be understood by the principal that the dad was taking time off to care for a child. Perhaps he just doesn't believe you. Perhaps he feels you should quit if you are putting your family before the school.

I'm interested to hear what the union says but as this is recruiting season, it might be best to put your enery into finding another job instead. If the school wants to get rid of you, they will find a way. Maybe not this year but perhaps next. Besides, do you really want to continue working for someone who doesn't want you there?
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Jagariko



Joined: 14 Oct 2013
Posts: 16

PostPosted: Sat Dec 07, 2013 2:00 am    Post subject: Reply with quote

As an update: I was offered a one day a week job just this week by a private student who works as a high school teacher. She said the school are keen to replace the current teacher. He wants to stay (the money is pretty good) but the school thinks "he's worked there for five years. It's time for someone new."

I bit my tongue (private student and all that) so didn't ask whether the Japanese staff get considered old hat after five years as well.
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ssjup81



Joined: 15 Jun 2009
Posts: 536
Location: Tendo, Yamagata, Japan

PostPosted: Sun Dec 08, 2013 4:04 am    Post subject: Reply with quote

I'm rather curious if that applies to the Japanese too. Not comparable, but when I visited the old school I worked for three years ago, most were gone, including the principal and the vice principal.

I work at an Eikaiwa now and one of the students is a teacher. She mentioned how after a while the teachers are usually changed and replaced after so much time...to have a new face. Being from the US, and I'm sure the same goes for many other places, it was surprising since the teachers usually stay there permanently. I'm sure I can visit my old high school and find some of my old teachers, unless they retired of passed away (like my high school English/Journalism teacher who was one of the most inspiring teachers I ever had, so I was disappointed when visiting and hearing that news about 10 years ago). Even when working at my former middle school a few years ago, I saw teachers that were around when I was a student there about 14 - 16 years earlier, who'd also been there even before I was born. Hm, even my mother ended up with two of her mother's old elementary school teachers because she went to the same school as her mother did. Her younger sisters didn't get them, though since they were getting older and retired.

I find this new face concept a strange, and unnecessary, one.
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mitsui



Joined: 10 Jun 2007
Posts: 454
Location: Kawasaki

PostPosted: Sun Dec 08, 2013 5:36 am    Post subject: Reply with quote

Exactly, why this country seems to be more suited for the single or teachers who are not so serious.
So if you want to stay, fight and join a union or just capitualate to the reality of your surrounding.
Or just get ready for your exit.
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rtm



Joined: 13 Apr 2007
Posts: 397
Location: US

PostPosted: Sun Dec 08, 2013 6:03 am    Post subject: Reply with quote

Jagariko wrote:
but the school thinks "he's worked there for five years. It's time for someone new."

I'm sure you've all encountered this also, but one of the first things that many Japanese ask foreign people is how long they are going to be in Japan / when they are leaving. Foreign people are temporary, transient employees. It's not only expected that there will be an end to our employment/stay in Japan, but that we know when that will be from the outset.

ssjup81 wrote:
I'm rather curious if that applies to the Japanese too.

As you point out, in public schools, Japanese teachers are transferred around often (the reasoning behind which still baffles me). But, the situation the OP was talking about was not one of being transferred, but being let go, and also it's at a private high school, where such transfers just don't happen. I've known (Japanese) people who have worked at the same private high school for over 20 years. (But, I get your point that the whole "new face" mentality might still exist.)
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Jagariko



Joined: 14 Oct 2013
Posts: 16

PostPosted: Sun Dec 08, 2013 6:09 am    Post subject: Reply with quote

I'm rather curious if that applies to the Japanese too.

It does but in a different way: teachers who teach one subject to all ages (art, music, P.E.) usually stay. Some who have been teaching junior high for several years may then be moved to senior high and vice-versa. Head teachers who have done well may be relocated to another school to sort out problems. Heads who have been under-performing will be punished by being sent to a notorious school - counter-intuitive but there you go!

Japanese teachers who have been performing well and haven't rocked the boat in any way will not find themselves out of work purely because a "new face" is required.

Most foreign teachers don't speak Japanese well enough to become a homeroom teacher. Most wouldn't want to anyway as it is a thankless job. Therefore, they are considered disposable. However, as well as being a convenient way to get rid of dead wood, the "new face" argument is also just applied whimsically.
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