Dismissal invalid for no-mask reason -- Condominium janitor wins lawsuit

In a ruling on December 5 in a lawsuit filed by a condominium janitor in his 70s, claiming that he was unfairly dismissed for not following instructions to wear a mask to prevent the new coronavirus, the Osaka District Court ruled that the dismissal was invalid because "the dismissal cannot be considered reasonable under socially accepted norms," and ordered the company to pay approximately 900,000 yen.

According to his attorney, judicial decisions against dismissals over the wearing of masks are rare.

According to the ruling, the man worked as a janitor at a condominium in Settsu City, Osaka Prefecture, and contracted the new coronavirus last May. The following month, after he returned to work, the company approached him about being reassigned to a cleaner at another condominium where wages were lower, after residents complained that the man was working without wearing a mask. When the man refused, he received a termination notice for not following instructions to wear a mask.

The judge noted that the failure to wear a mask was a violation of employment regulations. On the other hand, the judge ruled that it was an abuse of the right to dismiss because there was only one complaint from residents and there was no evidence that the infection had spread in the condominium.

The man claimed that the reassignment was also illegal because it was intended to force him to resign from his job. The court dismissed the case, saying that the reassignment was necessary for business purposes in order to prevent residents from becoming concerned about infection.

Small and medium-sized employers are also obligated to at least a 50% premium rate for overtime work in excess of 60 hours per month - effective April 1, 2023

◆Abolition of deferral measures

Effective April 1, 2023, the regulation that the premium wage rate for overtime work in excess of 60 hours per month shall be "at least 50%" also applies to small and medium-sized employers.

Originally, when an employee worked overtime or on holidays, the employer had to pay premium wages calculated at a rate of not less than 25% and not more than 50%. However, due to an amendment that came into effect on April 1, 2010, it was stipulated that premium wages calculated at a rate of 50% or more must be paid for over 60 hours worked per month. 

However, this revision was not applied to small and medium-sized employers (employers with 300 or fewer workers , 50 or fewer in the retail industry and 100 or fewer in the wholesale or service industry), but it will be applied from April 1, 2023.

◆Alternate leave provisions also apply

The "compensatory leave" provision will be applied to small and medium-sized employers as well, along with the provision that the premium wage rate for overtime work in excess of 60 hours per month be at least 50% of the monthly rate.

Alternative leave is a paid leave of absence in lieu of payment of premium wages at the legally mandated increased rate of premium wages for workers who work overtime in excess of 60 hours in a month, based on a labor-management agreement.

Items to be agreed upon by labor and management include the calculation method of how many hours of compensatory leave should be granted for hours worked in excess of 60 hours per month, and the unit of measure for compensatory leave (one day or half a day).

In addition, when introducing the system, it should be noted that whether or not an individual worker actually takes an alternative leave depends on the worker's intention, and that if an alternative leave is implemented through a labor-management agreement, the matters related to the alternative leave must be stated as "leave" in the work rules.