foreigners in japan (a district high court case)

[JC Helary]

----- Forwarded message from issho <owner-issho at ml.gol.com> -----

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>

----- End forwarded message -----