The Law Doesn’t Matter? Taking Your Dispatch Employer To Court Using New Labor (Rodou Shinpan) Three Strike Procedure

Roudou Shimpan (Labour Court) Part 1

A special report by David Klan

[THIS IS THE FIRST PART OF A THREE PART SERIES. LINKS TO THE OTHER PARTS: PART 2, PART 3]

This series of articles will detail my case and the process of this new Labour Court for anybody unlucky or stupid enough to find themselves in a situation similar to my own. Sadly, many employers value cash over human capital and will criminally abuse their workers in order to line their own pockets and preserve corrupt relationships.

Capitalism at it’s finest, you say? Consider the costs involved in training a worker, the network of contacts that the worker develops and the expertise gained while on the job. The dispatch worker’s system was created to give companies a chance to temporarily hire a worker for one year before deciding whether or not to employ that person full-time. Many companies, however, will keep these dispatch workers for several years while exerting pressure on them to act as full-time employees and not enjoy the benefits of full-time employment. This is called gisou ukeioi, or disguised contract work, and it is an illegal business practice.

Several months after I started working as a Bridge System Engineer, I was sent to Holland to work on a large project. Over the course of my employment I would be sent to Holland six more times on various projects and also supporting other projects in Singapore, China, Indonesia, Australia and the United States. It was an exciting time and I loved the attention given to me for being the only native English speaker in a software division employing nearly 150 people. I strived to support my team and was in constant communication with my boss and fellow programmers to make sure that I wasn’t overstepping my bounds or creating unpleasantness. Anytime there were problems I would consult with my boss, offer up the necessary apologies and take corrective action to make sure that the same thing never happened again.

“Ishinoue nimo sannen” This Japanese saying means that you must sit on a rock for three years before you reap the benefits of hard work. I was coming up on that three year mark and starting to feel a sense of entitlement. The full-time workers and dispatch employees around me all had job security and were invested in the company. I did not have a contract with my dispatch agency, no monthly pay slips, no holidays, no insurance, no tax support, nothing. Just an amount that was deposited in my bank account every month.

I petitioned the dispatch company I was working with about these issues that conflicted with the Labour Standards Law. I brought these items up at several times during my employment, but was given typical face-saving gestures like promising to look into the problem and empathizing with my point of view. Finally, I made some serious steps to remedy the situation and was suddenly fired. In December of 2006, I was dismissed with only one week notice (kaikou sareta) from both the manufacturer, and the dispatch agency (hakken gaisha) I was working with. Not even a going away party, just one day I was working and the next day I was gone!

Was this standard treatment for anybody who spoke up? Would they treat a Japanese employee any differently? You bet your sweet ass they would, but I couldn’t take my employer to court for hurting my feelings. I was told by the manufacturer that the faceless HR entity routinely terminated contracts that were ‘having problems’ and to take it up with my dispatch agency. The dispatch agency said that my hard negotiating tactics had destroyed my position and they were no longer willing to employ such a dangerous gaijin.

Dismissing me was fine, if they had a good reason. In that case, they should just issue a proper termination notice (Taishokushomeisho) with the reason for my dismissal. First, the dispatch agency said they did not recognize the existence of the form, and then with pressure from the Labour Standards office they issued a form, but said that I quit voluntarily in order to avoid paying 3 extra weeks of pay. From that point on I was completely determined to see justice done, despite many friends encouraging me to forget about it and move on.

“The Japanese legal system is too complicated.”
“You’ll be in court for years before this is settled.”
“Good luck finding a lawyer to take your case.”
I started at the Labour Standards Office to see exactly what remedies were available to me. Since I had already been dismissed, there was little that they could do. A mediation system within the Labour Standards office called ‘Assen soudan’ will review your case and advise you on how to set up a meeting with the former employer and a Labour Law expert presiding as the judge. Free legal aid is also available in Tokyo, and I took an hour to use this service and get advice on how best to proceed with my complaint.

I found that the sum of my case did not rest on the conditions I was working under or any kind of discrimination, but on the fact that I had been terminated and then forced to say I quit. Luckily, I never said I quit and had email evidence stating that I needed legal employment status and consideration as a full-time worker. Yes, yes, I implied that I could find another job that offered me the things I was asking for, but I was very careful never to give the impression that I intended to quit.

I engaged in the Labour Standards mediation process and presented my case. The dispatch agency also presented their case and a judge reviewed both sides. We were interviewed separately and then at the end encouraged to reach a settlement. The judge informed me that I had a very strong position but the president of the dispatch company had said, “I will not give him a single yen!” So I had no choice but to move on to the next step.

With the help of good people, I managed to find some lawyers who believed in my case and they started working with me as soon as their schedule cleared up. The lawyers gave rock-solid advice and helped me draft a professional and legally relevant affidavit. We submitted it to the newly created Labour court (Roudou Shimpan). At first, we had doubts about sumitting the case to this court because the Roudou Shimpan just started in April 2006 and there is little information about the process and judgements.

The courts were getting swamped by the employment cases because of the number of companies blurring the lines between dispatch, contract, and full-time employees. The Roudou Shimpan was set up to churn out quick decisions for the disproportionate number of Labour related cases. The process should not take more than 3 meetings and 3 months before a decision is reached. They accomplish this by appointing a judge, a Labour Union representative and a Human Resources representative… technically arguing both sides of the issue so the judge can identify the facts and quickly decide. Lawyers are not necessary if you’re arrogant enough to presuppose that you don’t need them.

My lawyers submitted an affidavit to the Roudou Shimpan at the beginning of September and a court date was set for October 30th, 2007. In the next article I will discuss exactly what happened at the Labour Court.