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Tuesday, Feb. 28, 2012

LIFELINES: LABOR PAINS

Oversleeping radio anchor set tough precedent for firing staff


By HIFUMI OKUNUKI

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 strike 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.


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