Illegal Contract Clauses (Part II) - Kinder Kids

In regards to contract laws, an unconscionable contract is a contract that is "so extremely unjust, or overwhelmingly one-sided in favor of the party who has the superior bargaining power, that they are contrary to good conscience".

These kinds of contracts are often deemed to be entirely unenforceable, due to the fact that no sensible person, were they suitably informed, would agree to them.

The key word here, however, is "informed".

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A common tactic that many employers use is to insert complicated "boilerplate language" into contracts to confuse or mislead a potential employee into signing away their rights. One might consider "boilerplate language" and "legalese" to be two sides of the same coin: both exist to manipulate employees and stack the deck in favor of the company.

In Japan, such tactics are taken a step further. Taking advantage of a foreigner's ignorance of complicated labor laws and practices, it's no secret that some companies will happily lie through their teeth because they know that, with no other experience to draw upon, a foreign employee is likely to accept such lies as truth.

However, unlike other countries, an illegal clause in a contract does not void the contract as a whole. Perhaps in order to protect employee(s), an illegality in a clause will only void the offending clause itself, with established labor laws always taking precedence.

To that end, the second part of the General Union's series on illegal contract clauses (boilerplates and all) will focus on a rather egregious clause that can be found in the contract used by Kinder Kids International School.

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KINDER KIDS AND DISMISSAL CLAUSES

With headquarters in both Tokyo and Osaka alike, Kinder Kids International School describes itself as "a global educational enterprise, provid[ing] the opportunity for many children to receive a high quality education so that they will be well prepared to work in the international work place using their broad globalperspective [sic] and high level of English skills with pride and confidence".

So, does such a "high quality" company apply that same characteristic towards employee rights? (Spoiler: No.)

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Article 15. Dismissal.
Employee agrees that Employer may dismiss Employee without advance notice for failure to maintain a proper visa, professional ineptitude, moral turpitude, gross misconduct, dishonesty, violation of company rules and regulations, inappropriate disclosure of any confidential relating to clients or Employer, financial loss or damage to Employer or its clients through Employee's actions or neglect, or participation in activities jeopardizing the Employer's reputation or business position.

It would be fair to say that this is something we might call a "we can fire you for anything, whenever we want" contract clause; a scary list of legalese and ill-defined banality, intended to send one clear message to an employee: don't step out of line, or else you're fired.

To the uninformed, it might even seem entirely reasonable.

Of course, the clause is illegal, and here's why:

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ADVANCE NOTICE OF DISMISSAL

Article 20 of the Labor Standards Act (Advance Notice of Dismissal) states:

In the event that an employer wishes to dismiss a worker, the employer shall provide at least 30 days advance notice. An employer who does not give 30 days advance notice shall pay the average wages for a period of not less than 30 days.

The law states that an employer MUST give an employee thirty days of advanced notice if they intend to dismiss that employee, OR pay the employee thirty days of salary in place of the thirty days of notice that they aren't being given.

In a nutshell: thirty days of notice, or thirty days of additional salary.

A company can't just dismiss someone without notice because they feel like it.

Or can they? (Spoiler: Nope.)

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LABOR OFFICE APPROVALS

There is another option available to a company that really, really wants to be rid of an employee: they could make the case to the local Labor Standards Office and have the Labor Standards Office (LSO) approve the dismissal.

However, that path to dismissal is not so clean and dry, either.

For a start, something as simple as a "violation of company rules and regulations" would not be sufficient to earn the LSO's approval - nor would "professional ineptitude" or "dishonesty".

It's equally likely that the failure to provide definitions as to what would qualify as "moral turpitude" would not be looked upon favorably, either.

Now, if someone were to do something beyond reason and convention - for example, if an employee had hit someone with their car while driving under the influence of alcohol, got into a severe altercation with another person, or straight up murdered someone - then, yes, that would probably quality as a sufficient reason for the LSO to approve the dismissal.

Be that as it may, the LSO would examine the incident and the details surrounding the incident in great detail, and approval is usually only given in extreme cases.

By that point, it's very likely that more than thirty days would have transpired, anyway.

So, what can we conclude from this?

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IN CONCLUSION...

With a little bit of knowledge, it's easy to see that Article 15 of the Kinder Kids International School contract is mostly a lot of illegal bluster, and not really worth the paper that its printed on.

Sadly, regardless of how much of the clause can be dismissed as "(il)legalese" and manipulative "boilerplate language", it's more like than not that the intended effect of such writing has been felt on more than one occasion.

It's fair to say that, after reading such pervasive language, many people are likely to be intimidated enough to merely acquiesce to any of the company's demands - and we're sure that more than a few people have likely found themselves "dismissed without notice" and just accepted it as being the incontestable truth of their situation.

However, now that you've been educated about the reality of the situation (vs. the "reality" that fraudulent contract clauses try to peddle), you'll hopefully never have to count yourself among the unfortunate ranks of those people who lost their jobs because they didn't know any better.

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If you have discovered illegal clauses in your contract, and you'd like the General Union to take a look at them and potentially expose them for that they are, please get in contact with us by sending an e-mail to:

union(@)generalunion.org


Alternatively, have your say and share your thoughts on our official Facebook page:

http://www.facebook.com/GeneralUnionJapan/


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