#10: Otemon Gakuin Case (Disciplinary Dismissal)

Osaka District Court ruling March 25, 2020 judgment (p.59, Rodo-hanrei #1232)

  In this case, the issue of sexual harassment developed into a problem of factionalism within School Corporation Y, and the former university president and the two other professors, X et al, who pursued the liability of the directors, were disciplinarily dismissed and ordinarily dismissed.
  The court found the disciplinary dismissal and ordinary dismissal to be invalid.

1. Outline of the case
  The starting point was that D, who was a clerical staff member of Y and a consultant to the cheerleading team, sexually harassed its coach C and students on the team. C, who was very angry, consulted with Professor I and Professor K, but I and K persuaded C not to make any trouble.  C initially accepted this, but was unable to accept that D was lightly disciplined in the end, so she filed a lawsuit against D, I, and K. X et al supported C in the course of bringing this lawsuit.  C and X et al planned to hold press conferences and other events in conjunction with the filing of the lawsuit and aimed at a revamp of management by holding Y's directors responsible. However, the media did not cover this lawsuit, and the coup d'etat was unsuccessful.
  X, who was rebuked at the board meeting, resigned as president.  Then, Y was reassigned X to the Education Research Center.  X filed a lawsuit alleging invalidity of this reassignment, and then Y was disciplinarily dismissed X et al.  This lawsuit was filed to claim the invalidity of this disciplinary dismissal.

2. Points of judgment
  This court made a detailed finding on the maneuvering of X et al and Y, centering on C's words and behavior.  An important issue is the existence of maliciousness in episodes of frequent leaks of Y's important information for the coup d'etat.
  The first point that is particularly noteworthy here is that in this lawsuit, C reversed her position and argued that the lawsuit against I and K was forcibly conducted by X et al.  It is unclear what moves have taken place in the background of her change of heart. In exchange for D leaving Y, was C's position at Y guaranteed?
  Looking back at the history of the incident from C's testimony, we can see a story that would certainly be strange if X et al were judged as having leaked Y's important information.
  However, the court found that C wanted to respond strictly not only to D but also to I and K, and that C was taking the initiative in the litigation.  This story is the opposite of what C testified to in a substantial part, but this story was proved because of a number of e-mails that C had exchanged with X et al.  C's own grudge against D, I, and K was discussed candidly, and a series of e-mails clearly showed C's leadership in the lawsuit. In particular, not only the statements in the emails themselves, such as the correction of litigation documents, but also parts containing the sent e-mails played an important role in clearly indicating C's true feelings.
  In this way, cases in which e-mail exchanges with employees play an important role as evidence, for example, in cases of harassment, have become common.  Cases of the recordings of meetings and conversations becoming evidence are increasing.  In automobile accidents, dashboard cameras are also being used. In addition, internal problems which only internal parties could know have become increasingly public via not only whistle-blowing systems but also SNS.
  We no longer know what evidence will expose what actually occurred, so this is an age when we have to think about things based on the assumption that we can't hide the facts by closing the doors (it doesn't mean that it was forgiven in the past).

3. Manifestation of Intention to Dismiss
  The second point to be noted is the dismissal.
  The dismissal includes two arguments: (1) that the disciplinary dismissal declaration of intention at issue from the outset includes a manifestation of intention of dismissal, or in other words ordinary dismissal, not disciplinary dismissal; and (2) that the additional notice of ordinary dismissal at the end of the litigation is valid.
  As for (1), the language could not be read to mean an intention for ordinary dismissal, and therefore, the intention of ordinary dismissal was not recognized in the first place.  There is a judicial precedent which admits the effect as an ordinary dismissal, even if it is not explicit, but this judgment was assumed to be interpreted differently.
  As for (2), it was pointed out that both X and Y were scheduled to submit the final brief, and although it would be concluded shortly after the examination of witnesses at the end of the court proceedings, the claim for dismissal itself was regarded as valid.  If the submission of evidence and detailed discussions would have been necessary again as a new argument, the conclusion would have been different, but even if more than three years had elapsed since the service of the complaint, as far as the opportunity to object to the complaint had been secured, the court evaluation that the manifestation of intention to dismiss would be effective, will be a useful precedent for future practice for dismissal.
  However, the dismissal itself was nevertheless nullified.  X et al disclosed some secrets, but they were not serious enough to warrant dismissal.  Although the hurdle is lower than disciplinary dismissal, the same rule of above 2 was applied to ordinary dismissal.

4. Practical points
  In the case of a coup d'etat that split management, the side that failed was miserable. In addition to the leakage of confidential information, which was the focus of discussions in this case, various liability was pursued, including violation of directions and orders, violation of service disciplines, criminality, and compensation for damages.  They also lost what they have built. 
Those who succeed must continue their normal operations without delay, while making major repairs to prevent the company from sinking, such as restoring the image and trust of the damaged company and repairing the division caused by the factional conflict within the company.
  The harasser is often an outstanding employee, and there are relatively many cases in which managers and officers were divided into two groups, one is those who try to protect the harasser, another is those who try to clean up the company by punishing the harasser severely.
  In particular, if the conflict or dissatisfaction has been suppressed in the past, it may erupt all at once.
  In practice, even if factional activities are unavoidable, it is necessary to clarify and thoroughly enforce policies not only at the level of employees but also at the level of executives, to ensure that activities of factions are correct, that there is no conflict or dissatisfaction among factions, and that ideas of how to respond to harassment are not different among factions or persons.

※ Pointer
<Treatment of Harasser>
  For many foreign business persons, Japanese companies seem to be cautious about the punishment of harassers.  This trend is particularly pronounced when the harasser is a good manager or leader.  In other words, it seems to be the background of the idea that if there is a slight harassment or an initial harassment, it should be treated leniently in light of the circumstances because of the contribution of the harasser to the company and expectations for the future.   Furthermore, in Japan, the hurdles to dismissal have increased due to the provisions of Article 16 of the Labor Contract Law and other factors, and the fact that managers are reluctant to dismiss their employees may also affect the situation.
  In contrast, strict Western companies punish harassers more stringently, especially those who are high ranking or are expected to be a leader. The reason is that the disappointing maliciousness is great.
  In this way, Japanese companies tend to treat harassers lightly.
  Recently, however, more and more companies in Japan are taking strict measures.   Do these companies believe that companies which fail to protect the harassment victims cannot maintain the cohesion of management or motivation of other employees?

※  Japanese original

※ PR
<Rodo-hanrei>
Among the Japanese case law books relating to labor and employment law, the Rodo-hanrei is the oldest and most prestigious, having been published since 1967.

労働判例

<Value of this article>
I am a facilitator of a monthly study that covers all cases in the Rodo-hanrei, at the Japan In-house Lawyers‘ Association, JILA in Tokyo and Osaka, and at the study group of Sharoshi in Tokyo.   This series of articles are the result of the study group.
  This series has turned into a book, from the publisher of Rodo-hanrei!  So this series of study and articles are recognized as the most reliable guidebook!

実務家のための労働判例読本 2021年版