Re: [tlug] James John McGuire

["Mark Makdad" <makdad@example.com>]

On Mon, Dec 8, 2008 at 5:40 PM, Curt Sampson <cjs@example.com> wrote:

Unfortunately, and despite that he says he understood that the contract
he signed allowed us to ask him to leave without notice, he's decided
that he's going to bring action against us through the labour board for
several hundred thousand more yen. We are disputing this of course, but
even if he's not successful, we're still out time and money that we're
spending on dealing with this rather than doing work for our clients.
(This has also been extremely stressful for us.) We've had several
discussions with him asking him to drop this and let us all move on with
minimal hard feelings, but he is quite intent on pursuing his course of
action.

Curt, 

This may be slightly OT, but since some of the members of this list are working on a contract basis, I figure the following may be helpful.

As a manager of a Contract Staffing team at a staffing/recruitment team, I field a lot of questions about the termination of contracts; it is no doubt one of the hardest parts about signing a good employee to a contract -- the risk of being cut for budget or otherwise reasons.  Nonetheless.  <disclaimer>I am NOT a lawyer, so please verify any of the below with yours before taking my word.</disclaimer>

Of the 5 most common types of employment (direct employment [Seishain], direct contract [Keiyaku-shain], temp [Haken-shain], temp-to-perm [Shokai-yotei haken], independent contractor [Freelance]), the only contract type that can really get employers in trouble is a direct ("Seishain") employment or a direct contract ("Keiyaku-shain").

In the case of temp and temp-to-perm, the temp agency would take the responsibility to pay him any money required; it wouldn't fall on Starling.  Additionally, in most Temp contracts, there is a 2-week sudden-death rule/guideline-- you can cut any time in the first 2 weeks by claiming it is a "skill mismatch".

The obvious downside of temp is that you have to deal with an agency-- extra cost.  The upside is that a good temp agency will screen the candidate not only for skill but for market reputation and personality match (very important in a development environment).

Now, where it gets more confusing is the difference between "Direct Contractor" (Keiyaku-shain) and "Independent Contractor" (freelance).  In other words, a freelancer holds his own company and merely hands you an invoice every month for his "salary".  A Direct Contractor still relies on your company's backoffice to pay his social insurance, health insurance, unemployment insurance, etc.  Anyone you employ under a Direct Contract does require these benefits, even if for only 3 months (up to about 2 months is the limit you can employ someone without entering them under your social insurance).

Finally, if he is an "Independent Contractor", which your text indicates that he very well may be, a contract is a contract, and the labor law is not at all in his favor.  You are dealing with him as a "company" or "vendor", and in that sense, if your contract says you can cut it at any time within 3 months, and you have a copy of that with his signature/hanko on it, I'd say you win, hands-down.

I don't know if that helps anyone at all, but for what it's worth.  I won't be at the bonenkai on Friday, but if anyone wants to know more, please message me offlist.

Cheers

Mark