SNA (Tokyo) — Kata-tataki, or taps on the shoulder, indicate a series of actions a boss takes to drive a worker to quit without outright firing them. It establishes that the subsequent contract termination is mutually agreed, as opposed to a unilateral and contestable firing. The legal jargon for such “shoulder tapping” is taishoku kansho. In this installment of Bread & Roses, I’d like to explain the practice and introduce a recent, surprising verdict in a court case over its validity.
On October 19, 2022, Adam Cleeve concluded an in-court settlement with Shane English School, thereby ending a seven-year labor dispute that included him getting fired twice.
Adam had joined Shane Corp. in 2015 and soon joined the Tozen Union Shane Workers Union, due to his belief that all employees should unionize. He became executive president the following year. His active and effective leadership of the strike to win job security for teachers galvanized Shane management to launch a campaign to get rid of this troublemaker.
Many employers hoping to sack a union leader look for performance issues. But students lauded Adam as a talented and reliable teacher, a fact management admitted. Shane had to find another way.
Adam’s daughter Luna was born on November 6, 2015. When his wife found out she was expecting her first child, he took time off to be with her. Management used this chance to this leave by refusing to renew his one-year contract, claiming he had already taken his allotted discretionary paid leave days.
The company and the union had long fought over the number of annual paid leave (nenkyu) days employees had a right to take at their own discretion. The school insisted teachers give two months’ notice before taking any paid holiday, a condition labor law does not permit. Shane also had no required agreement with workers enabling the company to reduce the number of discretionary leave days available to teachers under Labor Standards Act (Article 39).
The law requires a written roshi kyotei agreement concluded with a democratically elected employee rep. Management rushed an election in Oct 2016 then appointed a lackey to affix their hanko personal seal to a backdated agreement.
The union rejected the article 39 agreement as invalid, and Adam took his full allotment of paid leave days. His wife expected a tough childbirth, so he wanted to see her through it, be by her side before and after. Management insisted the 39 deal was valid and accused Adam of staying out of work too long. Not only did Shane not pay for the days out, as required by law, the company notified Adam in January 2017 that his contract would not be renewed.
Adam had applied to take legally guaranteed childcare leave for the first year of his daughter’s life, which would have provided some wage coverage from the government’s unemployment insurance system as he raised Luna. But Shane made sure to sack him before he could finish the necessary application procedures. No job. No childcare support.
The union demanded immediate reinstatement, sued in the Tokyo Labor Commission, and hired Tozen Union Atty. Keiko Kato to overturn Adam’s firing in court. She believes that Shane already planned to non-renew Adam, even if he hadn’t taken time off to attend to his wife’s childbirth.
The cases lasted several years. An October 2019 court verdict ordered the school to take him back and pay all back wages (8.8 million yen) for the 2.5 years he had been out. Tokyo High Court dismissed the company’s paid leave system and thus the rationale for the contract non-renewal as invalid.
Adam went back to work with renewed vigor as a teacher and new purpose as a union activist. Management began to send him to several different schools, apparently to harass him, but Adam used the broader contact with coworkers to recruit more members to join the ongoing strike for job security, health and pension. Shane resumed attacking Adam for taking guaranteed paid leave and even issued warning letters.
The growing pressure from management led to insomnia, sleep apnea, and anxiety. His physician recommended four weeks rest but changed it later to two weeks after Adam made progress, regained his ability to sleep and was refreshed and ready to go back to work after just the fortnight. Shane wasn’t ready to let him back.
Management claimed it was “suspicious” that the four weeks required rest had turned into only two weeks rest. It was unclear what precisely would be the purpose of Adam or his physician in falsifying treatment options. Shane’s lawyer sent an official enquiry with a raft of probing questions to his doctor, based on Article 23.2(1) of the Attorneys Act: An attorney may request the bar association of which they hold a membership to make inquiries to public offices or public or private organizations so that they may provide information necessary for a case taken by the attorney.
The doctor refused to cooperate with the intrusion, so Shane demanded Adam see their own sangyoi company doctor. Eventually, both doctors agreed Adam was ready to go back to work.
But Shane insisted he start on fewer hours and sign a brand-new contract before coming back. Adam was on a full-time, permanent contract, but Shane insisted he sign a part-time, temporary, zero-hour “memorandum” (legally, a contract) as a condition of return. The school was demanding he throw away all job and income security because he had taken just two weeks off sick.
Adam rejected this dramatic degradation to his working conditions and insisted on returning immediately and on the same contract. Shane could easily and legally permit him to come back to work, even starting on shorter hours, without changing his employment contract.
Management continued to pay him partial wages for more than a year, then stopped paying his wages at all. On April 15, 2022, Shane fired him – for the second time, this time using his short period of sick leave against him. Shane even claimed Adam had harassed the company for insisting to return to work on the same contract. The union demanded reinstatement and all unpaid wages. He sued for the second time in Tokyo District Court.
Tokyo District Court proposed that the two sides finally settle this long-running feud rather than see the trial to the end. The judge conveyed to both sides’ lawyers that the dismissal had no chance to stand up in court and that without a settlement, Adam would be back at work with more back pay in his pocket.
The judge pushed Shane to accept Adam’s early offer of 11 million yen. The company came back with an offer of 10 million yen, after all taxes and deductions. This became the final deal.
And there’s more… Three months before this settlement, Shane fired yet another unionized teacher who had taken time off due to a family tragedy then refused to change his permanent, full-time contract to a part-time, temporary one that stipulated he could not challenge any possible firing. The union has demanded his reinstatement as well.
Looking Back and Forward
Adam had joined a union back in his native UK because he was “tired of being exploited.” He continued his union activism to fight for workers’ and union rights and “I don’t like bullies.” He admits the long years of fight have been tough going. “You have to be prepared to play the long game. All the work involved takes time; negotiations are slow; legal actions are even slow. But keep recruiting; a union is no good without members.”
What lessons should Shane learn from this fight?
Adam: How to negotiate rationally and in good faith. Listen to the union. Ideological and dogmatic opposition is bound to fail because it just motivates us to fight harder.
What mistakes have you or the union made thus far in the fight against Shane?
Adam: Uff… Many; it’s a continuous learning process. I think we’ve done a pretty good job of learning from them. I’m most disappointed we didn’t capitalize on our success of winning furlough pay. I think we needed to do a lot more organizing at that time.
How has this fight affected your home life with your wife and daughter?
Adam: Luna’s been to many union actions. Having a stable home life has been critical to help me maintain the fight for so long. I am very grateful.
What’s next for Adam Cleeve?
Adam: I don’t know. Start a Shane franchise school maybe? Seriously though, our fight with Shane isn’t done. There are still members we’re trying to get reinstated. I’m glad my fight is done but I intend to continue to help the union in another capacity.
Anything else you would like to add?
Adam: Workers need to get organized. Join or form a union. Bargain for better.
Louis Carlet, organizer at Tozen Union, 25 November 2022
(日本語 / English)
On October 30, Shinjuku Ward oppositional mayoral candidate Yoda Karen took time out of her busy schedule to stop by the Tozen office in Yamabuki-cho and give a heart-warming speech to Tozen Union’s Autumn Meeting.
If she becomes mayor of Shinjuku, she will be the first transgender mayor in Japan. Let’s urge everyone to fight under the slogan a ‘Shinjuku that lifts up minority voices.’
On 13 November 2022, Yoda Karen lost the election 52,000 to 21,500.
Yahoo news journalist Konno Haruki recently interviewed Tozen senior organiser Louis Carlet about how workers should respond to dismissals from foreign-affiliated companies, after Twitter’s mass layoffs.
Find the article here (日本語 / In Japanese )
Tozen Union’s Attorney Shoichi Ibuski topped celebrated labor lawyers throughout Japan, including Ryo Sasaki and Natsume Ichiro, to win the top post in Toyo Keizai’s poll of best labor lawyers in the country.
In the same poll, Tozen Union’s frequent opposing lawyers Shione Kinoshita and Ran Mukai ranked second and third best HR lawyers.
Monsieur Steven Ritchie, enseignant de longue date et responsable financier au Tozen UPL, poursuit le Lycée Français International de Tokyo devant le tribunal du district de Tokyo, pour la déduction illégale d’un jour de salaire et le refus de payer des heures supplémentaires.
Monsieur Ritchie a rempli un formulaire scolaire pour prendre son premier jour de congé personnel en 13 ans afin d’assister à la journée sportive de son enfant, cependant, Monsieur Gilles Sansebastien, ancien directeur de l’école primaire et supérieur immédiat de Monsieur Ritchie, a informé ce dernier que la “journée sportive de son fils” n’était pas une raison acceptable pour un congé payé l’obligeant a prendre un jour de congé non payé à la place.
Monsieur Ritchie a informé Monsieur Sansebastien, le directeur des finances et le proviseur de l’établissement que l’article de loi sur les normes du travail qui lui donnait le droit de prendre un jour de congé payé mais en vain.
Il ne s’agit pas d’un combat pour un seul employé mais pour tous les travailleurs du Lycée Français International de Tokyo. La direction doit suivre les lois du Japon et respecter les droits de ses employés.
Mr. Steven Ritchie, a long serving teacher and Finance officer in Tozen UPL is suing Lycee Francais International de Tokyo in Tokyo District Court, for the illegal deduction of a day’s pay and refusal to pay overtime.
Steven completed a school form to take his first personal day in 13 years to attend his child’s sports day. Mr. Gilles Sansebastien, former director of the Primary school and Mr. Ritchie’s immediate supervisor, informed him that his ‘son’s Sport Day’ was not an acceptable reason for a paid holiday but he would let him take an unpaid day instead.
Mr. Ritchie informed Mr. Gilles Sansebastien, the Director of Finance, and the Headmaster of the school, of the exact article in the Labor Standards Act that gave him the right to take a paid holiday. Regardless of this, management denied him the universal right in Japan, of taking a paid holiday.
This is not a fight for a single employee but for all the workers at Lycee Francais International de Tokyo. Management needs to follow the laws of Japan and respect the rights of its workers.
La oleada de sindicalismo que atraviesa al sector tecnológico, especialmente en EEUU, ha copado titulares en los últimos meses. Las votaciones para formar sindicatos en almacenes de Amazon primero, y el mismo procedimiento en las tiendas de Apple después, ha llevado a diversos expertos a hablar de un fenómeno que ya cuenta con sus propios líderes.
La aparición de trabajadores organizados se da además en una encrucijada: el frágil escenario económico —que se está constatando en los resultados financieros de compañías como Google o Meta en este tercer trimestre— desatan el temor a oleadas de despidos, que algunos ya consideran inevitables.
Le jeudi 28 octobre 2022, lors jugement au tribunal du travail de Tokyo, il a été ordonné au Lycée Français International de Tokyo de payer les salaires impayées de 2021 au président du syndicat Tozen UPL Amjid Alam.
C’est la deuxième action portée en justice depuis deux ans pour heures supplémentaires impayées. En effet, la direction refuse de payer ces heures sauf si elle y est contrainte par un tribunal japonais.
La direction a fait valoir que Monsieur Alam n’avait pas droit aux heures supplémentaires demandées selon ces mots: “il devrait comprendre comment fonctionne le système français”.
Elle ignore le fait qu’elle est liée par la loi de son pays d’accueil et que le fonctionnement peut différer du système français.
Lors de l’audience finale du jeudi 27 octobre 2022, la direction a tenté de faire pression sur Monsieur Alam pour signer un accord strict de non-divulgation en échange du paiement des heures supplémentaires alors que ce paiement venaient d’être ordonné par décision de justice. Cette proposition a fermement été rejetée car désavantageuse pour le syndicat.
Le LFITokyo est bien conscient de ce fait, puisque l’AEFE, l’agence qui gère les écoles françaises à l’étranger, a clairement expliqué que la loi locale devait être respectée.
Malheureusement, cette non conformité à la loi japonaise s’est répétée de multiple fois.
Le cycle des heures impayées se répète depuis la rentrée de Septembre 2022 et notre lutte sur ce point peut continuer.
La direction a deux semaines pour faire appel de la décision. Nous publierons une mise à jour s’ils choisissent de le faire.
On Thursday 28th October 2022, Tokyo Labour tribunal handed down a judgement ordering Tokyo International French school to pay unpaid wages to union leader Amjid Alam.
This was the second court case in 2 years as management ignores Japanese law and only pays overtime when ordered by a Japanese court.
Management argued that Mr. Alam was not eligible for overtime as ‘he should understand how the French system works by now’. This conveniently ignores the fact they are bound by the law of their host nation, and they are not in France.
The school is well aware of this fact as it is clearly explained by the AEFE, the agency which oversees the running of the school, that local law must be respected.
During the final hearing on Thursday 27th October 2022, management tried to pressure Mr. Alam to sign a strict non-disclosure agreement to prevent him informing others of what occured in court in exchange for agreeing to pay the overtime he was owed. This was rejected outright as it was not beneficial to the union.
Unfortunately, the school has decided not to respect Japanese law over and over again. In fact they have not paid overtime that is legally owed for 2022. So this struggle may continue.
Management has 2 weeks to appeal the decision. We will post an update if they choose to do so.