Can a company discipline an employee for taking absence without leave if that worker could be suffering from mental illness? Just a few weeks ago, on April 27, the Supreme Court ruled against Hewlett-Packard Japan Ltd. in a case that posed precisely this question. The verdict illustrates the courts’ thinking on a very modern ill of Japanese labor.
Let’s take a look at the facts of the case.
The Health, Labor and Welfare Ministry has decided to bring charges against business owners who refuse to join the employee pension program and pay insurance premiums — a violation of the Employees’ Pension Insurance Act.
Starting from the current fiscal year, the ministry will file a complaint with police against businesses dodging the mandatory pension program and release their names, ministry officials say.
The ministry will set specific standards, such as the number of times business proprietors reject requests for on-the-spot inspections to confirm pertinent data about joining the pension program, before moving to bring charges against violators.
By HIFUMI OKUNUKI
We like to think that work is about more than just making money, but the reality is that most of us have to work to earn our daily bread. A steady job is crucial for our long-term well-being.
In Japan, employment contracts may be either open-ended or fixed-term. Temporary contracts are unregulated except for the length of the term, which can run to a maximum of three years (Article 14 of the Labor Standards Law). The legal principle of “abuse of the right to dismiss” covered in our Feb. 28 column (“Oversleeping radio anchor set tough precedent for firing staff”) applies to open-ended but not fixed-term contracts.
In the case of fixed-term contracts, employers can claim employment naturally finishes with the end of the contract term. They need neither comply with rules for dismissal nor even give notice. In principle, there is no room for debate over the legitimacy of a non-renewal.
The Diet passed a bill Wednesday to amend the Workers Dispatch Law, aiming to improve the working conditions of temporary employees.
The revision forbids dispatch agencies from contracting temporary workers for 30 days or less. Also, employers will be urged to give temp workers the same pay as regular employees if they’re doing the same work.
But the revision will not fully protect nonregular workers. The Democratic Party of Japan’s plan to ban temporary workers from being dispatched to the manufacturing sector was scrapped under pressure from the Liberal Democratic Party and New Komeito.
The DPJ submitted a bill in April 2010 that included a ban on sending nonregular workers to factories after thousands of temps were laid off and left homeless when the slump hit in 2008.
The ban was featured in the party’s platform for the 2009 election.
The dispatch law, which regulates the treatment of temporary workers, was loosened to employers’ advantage when the LDP was still in power.
In 1999, it was revised to allow temporary workers to work in almost all industries except for manufacturing and health care. In 2003, it was amended to let temps work in the manufacturing industry.
These changes allowed manufacturers to lay off temp workers easily when the global financial crunch hit in 2008, and many became jobless and homeless, especially those who had been provided with company housing.
A total of 47 Indonesian and Filipino nurses passed this year’s national licensing examination for nurses under a project to accept foreign trainees, the health ministry announced Monday.
Under the project based on economic partnership agreements starting in fiscal 2008, a total of 572 trainees have taken part in the program. Of them, only 19 passed the exam through last year. This year, 415 trainees took the exam, and 11.3 percent of them passed.
The pass rate for the exam has gone up 7.3 percentage points from the previous year and reached double-digits for the first time. But, it is still far lower than the 90 percent average pass rate of all examinees.
As the low pass rate for foreign trainees has been seen as a problem, Health, Labor and Welfare Minister Yoko Komiyama said Friday the government plans to take special measures for them, such as including hiragana for each kanji character in the test and giving extra test time, starting next year.
The foreign trainees were originally scheduled to pass the exam within three years, working at medical institutions as assistant nurses. If they cannot pass the test in that period, they would lose their eligibility to stay in Japan.
As a special measure, however, the trainees, who failed the exam and whose eligibility for stay is about to expire, have been allowed to stay an extra year from last year if they attained a certain score on past exams.
Eight of 27 trainees who were allowed the extension of their stay last year passed the exam.
The coming of spring brings with it the sight of young women and men clad in black or navy suits, all carrying the same type of bag and sporting the most austere, no-nonsense hairdo and makeup, scurrying down the streets of metropolises around Japan. From a distance you’d be forgiven for thinking these youths are wearing uniforms and that all individuality had been banned by decree. Where are they all heading, and for what?
One of Japan’s employment practices entails companies hiring large batches of fresh college graduates all in one go. Today, even college juniors begin their third, penultimate academic year by sending out feelers to prospective employers. They spend a preposterous number of hours in a back-breaking, shoulder-stiffening ritual called shū katsu, drafting application documents, undergoing interviews, pretending to smile — all hell-bent on leaving a good impression and winning a saiyō naitei promise of employment from a coveted corporation.
Rather than a one-way promise, saiyō naitei is more properly defined as a prior agreement between a college student and an employer that contains a future right and obligation to work. The period between the date of this agreement and the first day on the job is called the naitei kikan. Students with a saiyō naitei agreement feel confident they will be working at that company come the April following graduation.
Yet, there have been several instances in recent years of companies canceling the agreement during the naitei kikan. In one particularly egregious case, students who clinched saiyō naitei the previous summer were notified of its cancellation in March, a month before their promised start date. So how does labor law interpret the rights of the would-be employee during this naitei kikan period?
Labor laws say nothing clear about saiyō naitei, but case law does have something to say about it. The Supreme Court set the precedent on July 20, 1979, in the Dai Nippon Printing case.
Let’s take a look at the case. University student X took the company’s entrance exam and was informed of the saiyō naitei promise in July. X’s university had a firm policy obliging students to take the first offer from a prospective employer to which the college had sent a letter recommending the student.
So, after receiving the saiyō naitei, the student sent a promissory note to Dai Nippon Printing and had to withdraw applications they had made to any other companies. But in mid-February of the following year, two months before the slated day of entrance, the company sent X a notice that the saiyō naitei had been revoked. No reason was given.
So X sued Dai Nippon Printing for the job, alleging that the revocation lacked rational grounds and was therefore invalid. In court, the printing firm explained that they “felt the (student) had a gloomy character and left a bad impression during the hiring test.”
The court ruled that the application was effectively an request for a labor contract, while the company’s saiyō naitei notification was in fact an offer of employment. That offer combined with the student’s promissory note constituted a binding labor contract between the two parties with a starting period deferred until just after graduation.
The judge stated that revocation is possible only when some unforeseen circumstance made it objectively rational and appropriate according to social norms to cancel, and that “a gloomy impression” hardly sufficed to meet those conditions. The revocation was therefore invalid and the student was instated at the company.
The Supreme Court noted that each case must be judged separately, as the surrounding circumstances vary. Although courts may rule differently in other cases of revocation, at least companies can no longer dismiss such promises of employments as “merely saiyō naitei.”
Hifumi Okunuki teaches constitutional and labor law at Daito Bunka University and Jissen Women’s University, among others. She also serves as paralegal for Zenkoku Ippan Tokyo General Union.
The regular monthly wage for workers in Japan eked out a 0.3 percent gain in January from a year earlier to an average 261,074 yen, bouncing back for the first time in 13 months amid pay raises in the welfare, medical and manufacturing sectors, which have relatively large workforces, the government said Tuesday.
The base wage inched up 0.3 percent to 242,642 yen, while overtime pay rose 1.2 percent to 18,432 yen, according to the monthly survey by the Health, Labor and Welfare Ministry.
The overall monthly wage, including bonuses and other irregular pay, stayed the same at 273,318 yen, with irregular pay shrinking an average 5.3 percent, it said.
By industry, regular wages at manufacturers grew 1.1 percent to 294,428 yen, while those in the medical and welfare industries gained 1.7 percent to 251,367 yen.
Overtime working hours in the manufacturing sector, seen as a key indicator of overall economic conditions, increased 1.5 percent to 13.3 hours for the fifth straight monthly rise.
http://mdn.mainichi.jp/mdnnews/business/news/20120306p2g00m0bu112000c.html
Language school firm will appeal decision
After hearing more than three years of testimony, the judge took only a minute to read the court’s verdict rejecting Berlitz Japan’s ¥110 million lawsuit against striking teachers and their union and reaffirming organized labor’s right to take industrial action.
According to the Feb. 27 Tokyo District Court ruling, “There is no reason to deny the legitimacy of the strike in its entirety and the details of its parts — the objective, the procedures, and the form of the strike. Therefore there can be no compensation claim against the defendant, either the union or the individuals. And therefore it is the judgement of this court that all claims are rejected.”
The battle of Berlitz began on Dec. 13, 2007, when teachers belonging to the Berlitz General Union Tokyo (Begunto) launched a strike against Berlitz Japan. The teachers, who had gone without an across-the-board raise for 16 years, struck for a 4.6 percent pay hike, a one-off one-month bonus and enrolment in Japan’s health insurance and pension system.
The strike grew into the largest sustained industrial action in the history of Japan’s language school industry. Over 11 months, teachers of English, Spanish and French struck 3,455 lessons in walkouts across Kanto.
In November 2008, Begunto filed an unfair labor practices suit at the Tokyo Labor Commission. The union alleges Berlitz Japan bargained in bad faith and illegally interfered with the strike by sending a letter to teachers telling them to stop walking out.
On Dec. 3, 2008, Berlitz Japan, claiming the strike to be illegal, sued for ¥110 million in damages. Named in the suit were the five teachers volunteering as Begunto executives, as well as two union officials: the president of the National Union of General Workers Tokyo Nambu, Yujiro Hiraga, and Louis Carlet, former NUGW case officer for Begunto and currently executive president of Zenkoku Ippan Tokyo General Union (Tozen).
Berlitz Japan claimed the union’s tactics of giving strike notice at the last minute and making it difficult for the company to bring in replacement teachers were illegal and designed to harm the company.
Begunto filed additional complaints against the company at the Tokyo Labor Commission in 2010 after Berlitz Japan dismissed two of the union executives named in the lawsuit. One teacher lost his job after he requested a leave of absence of more than a year in order to serve as a reservist in Afghanistan, the other after she requested an additional four months unpaid leave to recover from late-stage breast cancer.
Yumiko Akutsu, one of the union’s lawyers, told supporters after the verdict that the win was “a complete victory — on not one point did we lose, not one single point.”
Reading from the court’s ruling, she explained that the court found the objective of the strike to be legitimate because “the strike’s purpose was to realize the union demands they had clearly stated to management in 2007 and 2008.”
Because teachers had different work schedules at different language centers and often didn’t receive their schedules until 7 p.m. the night before working, the court also rejected the company’s claims that the last-minute notice given by teachers before striking lessons was illegal. “Strike notice just before the strike cannot be considered illegitimate”, the court ruled.
After the win, Carlet stressed the significance of the victory as an important defense of the right to take industrial action in Japan. “This is a very important victory for the right to strike,” he told union members. “I think people often forget how important the right to strike is. The right to strike was not granted us by governments or by management. Workers fought in many countries around the world and gave their blood, sweat and tears to win this right to strike.”
Hiraga also emphasized the significance of the win, telling union members, “I think what the verdict represents is that the company sued you for damages as a way to weaken the union and as an illegal union-busting tactic, and it was denied by the courts.” Calling it a triumph not only for Begunto and Nambu, Hiraga told supporters, “This is a victory for the entire labor movement in Japan.”
According to Akutsu, a victory by the company “would have had a huge impact and a huge chilling effect on people’s willingness to strike.”
Gerald McAlinn, a professor at Keio University Law School, said that because Article 28 of the Constitution guarantees the right of workers to organize and bargain collectively, “Any decision by the court to the contrary would have been very strange and contrary to the fundamental rights of all workers in Japan.”
McAlinn emphasized three reasons for the importance of the case. First, “A ruling in favor of the company would have opened up an avenue for employers to circumvent the balance of power established by the labor union law.” He added that allowing employers to sue striking workers “would be a powerful weapon that could easily be used to chill the exercise of constitutional rights by workers all across Japan.”
The court’s ruling is also significant because of the somewhat unusual nature of the strike action. Unlike in a typical strike, where workers walk out en masse and stay out together, Berlitz instructors sometimes taught and sometimes downed chalk. Individual Begunto members struck individual classes in different language centers at different times, handing their strike notices over to management only a few minutes before the scheduled start of the lesson. This minimized the company’s ability to bring in replacement teachers and break the strike. According to McAlinn, “This case seems to legitimize the practice of refusing to work other than via the traditional all-out-together picket line strike.”
Finally, McAlinn believes the verdict matters because it was mostly foreign teachers in the dock. “The nationality of the defendants should not matter of course, but this decision makes this point clear,” he said.
The triumphant union executive members stress the need to move past legal confrontations and get back to negotiations with management. Hector Coke, Begunto president at the time of the strike and one of the teachers named in the lawsuit, told union members and supporters in a meeting after the verdict that it’s time to start negotiating and “build a better relationship with management. We should not be arrogant in the fact we won this case.”
Paul Kennedy, current Begunto president, echoed this point at a press conference after the verdict. “We look from this point forward to be able to negotiate with Berlitz Japan,” he told reporters. “This is a new start for both sides.”
However, Berlitz Japan didn’t wait long before deciding to continue the legal skirmish. Kennedy says he received notice that Berlitz Japan will appeal the verdict on Friday.
Michael Mullen, Berlitz Japan’s senior human resources manager, declined to comment on the case.
Berlitz Japan doesn’t necessarily have to submit new evidence in their appeal to the high court. “In my experience, the high court is not shy about reaching a decision different from that at the district court level if the judges see the facts or law differently,” said McAlinn. “Having said that, I would be surprised if the high court were to reach a different decision in this case.”
Meanwhile, Begunto and Berlitz Japan continue their legal battle at the Tokyo Labor Commission, buoyed by the district court victory.
“With this verdict,” says Carlet, “we will be in a very good position at the labor commission because the strikes were legal and that will make all the difference.”
However, legal experts don’t all share Carlet’s confidence. According to McAlinn, the verdict “shouldn’t have a direct impact on the union claims at the Tokyo Labor Commission” because “the two actions are governed by different laws and legal standards.”
Tadashi Hanami, former chair of the Central Labor Relations Commission and professor emeritus at Sophia University, agrees, explaining that the Tokyo Labor Commission “may take this verdict in consideration if it chooses so, but we can hardly predict whether it will do so or not because it’s not unusual that courts and commissions take completely different opinions.”
Union members also now face a large legal bill. “The general principle under Japanese law is for each side to pay their own court costs,” says McAlinn. Union members are now discussing ways to recover court costs from Berlitz Japan, says Kennedy.
A radio news anchor oversleeps a live broadcast twice, forcing the radio station to cancel the broadcast. Should he be fired?
In the late 1970s, Japan’s Supreme Court weighed in. Case law on the legal principle of “abuse of the right to dismiss” (kaikoken ranyō hōri) was established by the famous Jan. 31, 1977 Supreme Court verdict in the Kochi Broadcasting case.
Mr. X worked as a radio announcer at Kochi Broadcasting’s news department. He overslept his 10-minute radio news spot starting at 6 a.m. twice in two weeks. The first time it happened, the news broadcast had to be cancelled, while the second incident delayed the start of the program by five minutes. Mr. X failed even to report the second incident to his superiors and then lied on the report that he was eventually compelled to submit.
The company dismissed Mr. X. Management claimed that a disciplinary dismissal was called for but that they had downgraded it to an ordinary dismissal out of consideration for his future job and other prospects. Mr. X sued for his job back, claiming that the company had abused the right to dismiss.
How did the court rule? The short answer is that X’s firing was indeed an abuse of the right to dismiss and was therefore invalid.
The court said: “Employers are not free to dismiss an employee whenever there are grounds for an ordinary dismissal; rather the expression of intent to dismiss constitutes an abuse of the right to [dismiss] and is therefore invalid if and when dismissal under the specific circumstances is notably illogical and cannot be accepted as reasonable according to social norms.”
In Japanese jurisprudence, this case set the precedent for all future cases of application of the legal principle of “abuse of the right to dismiss.”The court judged that the dismissal of Mr. X was overly harsh and lacked social legitimacy in consideration of several points, including that: although his absence caused the incident, it was neither malicious nor intentional; he apologized immediately after the first incidence of oversleeping; the broadcast pause due to the oversleeping was not particularly long; and that his ordinary work performance was not particularly bad.
At the time of the case, the law nowhere articulated the principle of abuse of the right to dismiss, but now Article 16 of the Labor Contract Law stipulates it as follows: “The right to dismiss has been abused and the dismissal is invalid when it lacks objective, rational grounds and cannot be deemed reasonable according to social norms.”
The flip side of this is that dismissals with objective and rational grounds may be valid. Case law includes two precedents that recognized dismissals, including a Tokyo District Court verdict of April 26, 2000, and another on Dec. 22, 2003, that validated dismissals due to poor professional performance.
The court determined that although the companies gave the employees the opportunity to improve their ability, there was little prospect of them rising to the level of average.
Today, when speaking of the Kochi Broadcasting case, some say that “dismissing an employee for oversleeping twice is completely reasonable.” Perhaps our society has become less forgiving toward workers.
Hifumi Okunuki teaches constitutional and labor law at Daito Bunka University and Jissen Women’s University, among others. She also serves as paralegal for Zenkoku Ippan Tokyo General Union. On the third week of each month, starting in March, Hifumi will discuss a famous case in Japan’s legal history to illustrate an important principle in labor law.
The death last May of a man who had engaged in work at the Fukushima Daiichi nuclear power plant after the nuclear crisis erupted there in March was recognized Friday as caused by overwork, according to a lawyer representing the man’s bereaved family.
A local labor standards inspection office in Yokohama, acting on a workers’ compensation claim by the family of [a subcontract worker dispatched by a construction firm in Shizuoka Prefecture], who died of a heart attack at age 60, determined that his cardiac infarction was caused by excessive physical and mental burdens arising from working overnight wearing protective gear and mask, lawyer Akio Ohashi said.
There have been 35 cases of workers’ compensation claims in connection with the nuclear disaster, and three of them involve a worker’s death. Aside from [that worker’s] case, the two others involved workers who died due to tsunami waves on the day of the disaster.