Date: Fri, 2 Feb 2001 00:05:02 +0900 (JST) From: owner-issho at ml.gol.com (issho) To: issho-digest at ml.gol.com Subject: issho V1 #1258
issho Friday, February 2 2001 Volume 01 : Number 1258
subjects of the messages sent today: [ISSHO] Gwen Gallagher loses High Court Decision [ISSHO] Shinenkai Sat Feb 3rd [ISSHO] Arigatou -- here and there
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Date: Thu, 1 Feb 2001 11:29:33 +0900 From: Arudou Debito/Dave Aldwinckle <debito at debito.org> Subject: [ISSHO] Gwen Gallagher loses High Court Decision
ACADEMIC APARTHEID UPDATE 2/1/01 GWEN GALLAGHER LOSES HER APPEAL FOR REINSTATEMENT IN HIGH COURT DECISION
Hello Friends and several mailing lists. The following is an update written by Gwen Gallagher, the non-Japanese academic summarily dismissed after years of service without reason several years ago from Asahikawa Daigaku, who, after reinstating her due to court mediation in her favor, went ahead and fired her again. Her second court case, you might remember from my emails from February 1, 2000 (http://www.debito.org/PALEJournals.html), wound up in a startling decision from an Asahikawa District Court judge saying that her dismissal was valid because (inter alia) she had lived too long in Japan, had married a Japanese (mentioning his salary for the record), and therefore could no longer teach modern foreign culture (which had startling implications for the rest of Japan's language teachers, women educators, and even older therefore obsolesced instructors of any nationality).
The Sapporo High Court's decision on appeal was announced yesterday, January 31, 2001. Rejection. Her firing was upheld--and in a way which makes people on contracts anywhere effectively firable at will, i.e. voiding legal acceptance of the expectation of renewal despite repeated renewals in the past.
Without further ado, let the curtain rise on this latest act of this tragicomedy:
Arudou Debito Sapporo
///////////////////////////// Dear Friends,
I'm sorry the news is bad. I was, like Scrooge, as he awaited the second spirit "ready for anything from a baby to a rhinoceros." What we got is a lot less attractive than a rhinoceros.
In Sapporo High Court today Head Judge Kazuhiro Takeda curtly announced "Appeal refused." We had to wait for my lawyer to retrieve the written decision from another floor and hurriedly scan it before we could find out why. I will try to explain its contents, as I understand it.
First let me remind you of a few basic tenets of Japanese labor law. One is that even a contracted employee has the right to expect renewal of contract, except when the employer has "a logical, applicable reason" not to do so. (This is invalid if there has been a clear agreement that the contract will not be renewed after a certain period, or if the contract is for some project with a clear completion, like the building of a house.) This right has been repeatedly affirmed, and is especially strong if the employee has already repeatedly renewed the contract. One stalwart member of my support group is high school mathematics teacher Toshiko Furukawa, who won reinstatement after being eliminated on the completion of just a single one-year contract in the '70s.
In my first lawsuit (after the '96 dismissal) Asahikawa District Court Judge Tani clearly stated that a "non-renewal" was a de facto firing, and based his injunction ordering the restitution of my pay and status on this right-to-expect-renewal, and Asahikawa University's lack of anything that approached a "logical, applicable" reason (remember the college's need for "fresh gaikokujin--foreigners".) Even Judge Saiki's appalling Asahikawa District Court decision of last year, for all its mistakes, illogic, blatant racism and sexist implications, did recognize my right to expect renewal-- he just happened to think that teaching experience and marriage to a Japanese depleted a foreigner's teaching ability to the extent that it consituted the logical, applicable reason required.
The High Court takes a different view. They simply declared the employee's right-to-expect-renewal void.
Another basic tenet of labor law is the requirement concerning "seiri kaiko" or cutting down on staff for economic reasons. If an employer is in financial distress, a number of steps must be taken before the dismissal of full-time employees. They are 1. making other efforts to economize first--and only dismissing employees as a last resort; 2. clearly establishing the need to reduce staff and the precise number to which they need to be reduced; 3. clearly establishing that the selection of the to-be-dismissed employees is fair; 4. clearly explaining all of these things to employees.
In the second lawsuit('98 firing), Asahikawa University claimed that my dismissal was due to economics, but took none of the above steps. District Court Judge Saiki's decision was vague on this point. But the High Court was clear: non-tenured faculty can be considered on par with part-timers, and in neither case is this protection applicable. In spite of various precedents to the contrary, the Sapporo High Court is now saying that non-tenured faculty (and other contracted workers) enjoy no protection from dismissals under labor law.
Now, you are probably wondering what the High Court has to say about Judge Saiki's (and Asahikawa University's) curious ideas about the foreign teacher's culture and teaching ability being debilitated by Japan-based experience and the contamination of a Japanese spouse. Well, NOTHING. There are clauses in the new decision which mention that certain specific portions of the district court decision are "corrected." It is still unclear, however, whether these sections, which include the well-known discriminatory clause, are now invalidated as precedents. The High Court decision does seem to be trying to cover itself by inserting parenthetically that although it is okay for the college to fire me, this is not meant to imply that I lack teaching ability. (Uhhh...thank you?)
What does it all mean? This is a very good question, but it seems this is part of a recent trend in which the courts have been whittling away at the protections of labor law. Labor activists present at today's ruling were quite angry and crestfallen.
Now we are considering the next step, which is the top of the ladder. The Supreme Court differs from the District and High Courts in that they only accept cases within several narrow categories. My lawyers are now considering whether we can apply. Application does not guarantee that the case will be heard. However, if it is possible, we intend to pursue this all the way.
I am glad that my good circumstances and the support of my dear husband, lawyers, friends, colleagues, and many kind supporters have enabled me to fight being discarded like a tattered paper doll. I came down this road because Masahiro and I both agreed that whatever the outcome, the opposition to injustice has value in itself, and I am very grateful for the people I have met and lessons I have learned on this journey. (snip details about party on Feb 9)
Thank you all Gwendolyn Gallagher
REPORT ENDS
======================= Debito/Dave's new website and domain name: http://www.debito.org Catalog of domestic discrimination issues: http://www.debito.org/TheCommunity Background on Businesses Excluding Foreigners in Hokkaido: http://www.issho.org/BENCI An informative new news website: http://www.japantoday.com
<snip>
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