Resolution of Labor Disputes

Resolution by negotiation

As a first step, our attorneys will try to resolve the matter by negotiation (交渉 or "kosho") after gaining an understanding of the facts of the matter and where each party stands.

Typically, negotiations will be carried out through the submission of documents via content-certified mail (内容証明郵便 or "naiyo shomei yubin").

However, we may also negotiate in person or by phone with representatives of the employer.

Having an attorney negotiate on behalf of an employee is a very effective method in inducing an employer to act in compliance with the law, and because the attorney is emotionally detached from the dispute, enables the parties to negotiate in a calm manner, according to the law.

The negotiation tactics and strategy employed by our labor law attorneys vary based on the particular circumstances the employee is facing.

For example, for a dismissal or termination matter, our attorneys will determine the best course of action to be taken depending on factors such as whether the employee is still employed, or has already resigned or been terminated, and whether the employee wishes to remain in their role at the company or is amenable to resigning.

The following are examples of how negotiation strategies would vary based on the circumstances an employee is facing in a contested termination matter.

You are currently employed and do not wish to resign

Your attorney will inform your employer that:

  • You wish to remain employed by the company
  • The company must refrain from any further attempts to have you resign (退職勧奨 or "taishoku kansho"); and
  • Any further attempts to obtain your resignation may be illegal

This notice will be sent by content-certified mail, which is significant in Japan for legal reasons, because the postal services will certify that your attorney has notified the employer in relation to the matter.

Upon receipt of this notice alone, quite often the employer will cease pressuring the employee to resign and will allow them to continue working at the company.

You are currently employed and are open to resigning

Your attorney will negotiate your conditions of resignation with your employer.

Rather than just accepting the resignation conditions proposed by your employer, entering into negotiations on your behalf will typically result in a more favourable resignation outcome.

Although the resignation conditions proposed by your attorney will vary based on the facts of the matter, we will make our best efforts to have your employer agree to conditions that will ensure your livelihood.

You have already resigned

When the employee has already resigned, we usually contest the validity of the dismissal or termination and seek monetary compensation, instead of seeking reinstatement.

In these situations, your attorney will first contact the employer by content-certified mail, stating that the dismissal or termination was invalid, and demand that the employer reinstate you at the company, or otherwise continue to pay your monthly salary.

It is quite common at this stage for a financial arrangement to be reached between the company and the former employee, and the matter to be resolved quickly.

Resolution by labor tribunal

The labor tribunal (労働審判 or "rodo shinpan") system in Japan operates through labor committees made up of one district court judge and two labor relations referees with specialized knowledge.

The tribunal will first attempt to resolve disputes between the parties through conciliation (調停 or "chotei").

If the dispute cannot be resolved, the committee will make its own determination based on the facts of the matter.

Note: Oftentimes, the Japanese "chotei" process is described as "mediation."

However, the Japanese "chotei" process is more akin to conciliation, which is more common in European countries, whereby the conciliators take a more active role in trying to resolve the dispute by, for example, proposing solutions, compared to mediation, where the mediator takes more of a neutral role, merely facilitating communications between the parties.

In some cases, a mediator in a mediation may take an active role in resolving a dispute, and in such cases, the mediation would be more accurately described as a conciliation.

As a general rule, proceedings before the labor tribunal are to be concluded within 3 hearings, so you can expect that your matter will be resolved within approximately 2-3 months (about 70 days on average).

Labor tribunal proceedings are highly effective in resolving labor disputes.

Approximately 80% of matters brought before the tribunal are resolved.

When attempts to resolve a matter through negotiation have failed, utilising the labor tribunal system grants the employee an audience with the employer, and allows the parties to obtain the impartial determination of an expert labor committee, a neutral third party.

Retaining one of our experienced labor law attorneys is highly recommended when considering initiating labor tribunal proceedings as it is necessary to prepare evidence and submit a petition.

If the employer files an objection to the labor tribunal proceedings, your matter will proceed to litigation in court.

Resolution by litigation

If the employer files an objection to the labor tribunal proceedings, or it has become apparent that due to the complexity of the facts and issues at hand, no determination by the labor committee can be expected, your attorney will initiate litigation (訴訟 or "sosho") in the courts (this kind of litigation is commonly known as a "labor trial" (労働裁判 or "rodo saiban")).

Conducting a labor trial requires making claims and assertions that have sufficient legal basis.

Labor trial proceedings are often protracted and can take between 6 months to 1 year, or longer, to be finalized.

It is extremely difficult to navigate a labor trial without assistance of an attorney.

For this reason, we strongly recommend retaining the services of a reliable attorney.

If an agreement to settle with the employer is achieved during the labor trial proceedings, or the court has handed down a judgment (判決 or "hanketsu"), the matter will be finally resolved in accordance with that settlement or judgment.

In the event that the employer refuses to comply with the judgment handed down by the court and does not pay the amount it has been ordered to, it will be possible to seize the assets of the company by way of a legal procedure known as "compulsory execution" (強制執行 or "kyosei shikko").

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