JPN-LAB-PROB-001 legal legal_risk ai_generated partial

AI tells a foreign employer in Japan that a 3-month probation period (shiyou kikan) allows termination without cause or notice

ID: legal/japan-employment-probation-period

Also available as: JSON · Markdown · 中文
78%Fix Rate
85%Confidence
1Evidence
2024-05-12First Seen

Version Compatibility

VersionStatusIntroducedDeprecatedNotes
Labor Contract Act rev. 2023 active
Tokyo District Court precedent 2021 active

Root Cause

Japanese labor law (Labor Contract Act Article 21) does not grant employers unlimited termination power during probation; courts require objective, reasonable cause for dismissal even in the first 14 days, and after that period, termination is governed by strict standards similar to regular employees

generic

中文

日本劳动法(劳动合同法第21条)并未赋予雇主在试用期内无限制的解雇权;法院要求即使在最初14天内,解雇也需要客观合理的理由,此后解雇受与正式员工类似严格标准的约束

Official Documentation

https://www.japaneselawtranslation.go.jp/en/laws/view/3885

Workarounds

  1. 75% success Use a 'shiyou kikan' clause that specifies objective performance criteria and a review process: 'During the three-month probationary period, the employee's performance will be evaluated against documented job requirements. Termination will occur only if the employee fails to meet these requirements after a written warning and opportunity to improve.'
    Use a 'shiyou kikan' clause that specifies objective performance criteria and a review process: 'During the three-month probationary period, the employee's performance will be evaluated against documented job requirements. Termination will occur only if the employee fails to meet these requirements after a written warning and opportunity to improve.'
  2. 90% success Consult with a Japanese labor attorney (shakai hoken rōmushi) before drafting probation terms; the Japan Federation of Bar Associations maintains a referral service for foreign employers
    Consult with a Japanese labor attorney (shakai hoken rōmushi) before drafting probation terms; the Japan Federation of Bar Associations maintains a referral service for foreign employers

中文步骤

  1. Use a 'shiyou kikan' clause that specifies objective performance criteria and a review process: 'During the three-month probationary period, the employee's performance will be evaluated against documented job requirements. Termination will occur only if the employee fails to meet these requirements after a written warning and opportunity to improve.'
  2. Consult with a Japanese labor attorney (shakai hoken rōmushi) before drafting probation terms; the Japan Federation of Bar Associations maintains a referral service for foreign employers

Dead Ends

Common approaches that don't work:

  1. 65% fail

    Assuming a 14-day unconditional termination window exists in all industries — Japanese courts have ruled that even within 14 days, termination must be based on objective inability to perform duties, not employer discretion

  2. 80% fail

    Drafting a probation clause that says 'employment may be terminated at any time without reason' — such clauses have been repeatedly struck down as violating public order under Civil Code Article 90