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Comment by hackit2 | Hacker News Reader

> a half assed job

A judge would automatically throw out the case if this was the argument for suing an employee. The reasoning being, if you continued to pay the employee during the term of their employment, and you knew that the employee was not performing based on some KPI or some yard stick, you would issue warning to the employee to improve their performance, or you would fire the employee on the spot. Continuing keep an underperforming employee is giving tactic consent that their work is reasonably acceptable because if it wasn't, you would start disciplinary action or cease their employment.

Threating a employee with coercive threats (such as threats of legal action) is going to land the business into hot water in any modern society.

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> The reasoning being, if you continued to pay the employee during the term of their employment, and you knew that the employee was not performing based on some KPI or some yard stick, you would issue warning to the employee to improve their performance, or you would fire the employee on the spot. Continuing keep an underperforming employee is giving tactic consent that their work is reasonably acceptable because if it wasn't, you would start disciplinary action or cease their employment.

We're talking about an employee on a fixed term contract, so there's not really any scope for disciplinary action of the "performance improvement plan" type. And the argument would be that they were hired because of a time-sensitive job (hence the need for this kind of irregular employee) and so just not paying them for work doesn't make the company whole, they needed someone to do that work at that specific point in time and if not then they have damages that are much larger than the salary they would've paid.

Of course by the time you get to court you can poke several holes in this argument. But under Japanese law it's a valid argument on its face, so it's something the employer can use to threaten.

Each party has their own valid argument that is why they're seeking the court to make a ruling. How-ever coercive threats of legal action is also in of itself constitute a encroachment of someone free will and statutory right which everything being equal could be ground for further legal recourse by the other party. You could also go into nit picking details around consent and duress during employment, which can get complicated really quickly.

> Each party has their own valid argument that is why they're seeking the court to make a ruling.

In many countries that kind of lawsuit would be trivially dismissed, because an employee not working does not give an employer a cause of action. In Japan a company can at least in theory be owed damages if an employee on a fixed-term employment contract of less than a year fails to work, so a case like that would go to trial on the merits (even if everyone knows it's very difficult for the company to actually meet the bar for showing damages) and be significantly more costly to defend, and that fact creates a chilling effect.

> How-ever coercive threats of legal action is also in of itself constitute a encroachment of someone free will and statutory right which everything being equal could be ground for further legal recourse by the other party.

Under what law?

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