Osaka Bar Association Ruling Against NOVA Socialisation Policy

Feb 24, 2004

Plaintiff A and Plaintiff B entered a plea of appropriate treatment to the Osaka Bar Association against NOVA, which they claimed had infringed upon human rights. After careful examination by our Human Rights Protection Committee, we have come to the following recommendation.

Purpose of the recommendation

We recommend that: 1. The defendant shall delete Article 11, Clause 16 of the Instructors Contract, and Article 29 of the Working Regulations for Instructors which the defendant concludes with foreign instructors at the time of their employment. 2. The defendant shall withdraw the decision of dismissal against Plaintiff B on the grounds that he violated Article 11, Clause 16 of the Instructors Contract, and Article 29 of the Working Regulations for Instructors.

Reasons for the recommendation

1. The facts construed as premises 1. The regulations forbidding socialisation with students. (1) The defendant has so-called ‘regulations forbidding socialisation with students’ as mentioned below. These regulations are aimed at foreign instructors only, who have to sign an ‘Instructors Contract’ which includes the following article [1] (hereinafter referred to as ‘the provision forbidding socialisation with students’) and are subject to the following working regulations including article [2]. [1] Article 11, Clause 16 of the Instructors Contract ‘The employee shall treat the clients in a professional manner at all times. The Employees shall not initiate, agree to or participate in any interaction with the clients of the Employer outside the place of employment.’ [2] Article 29 of the Working Regulations for Instructors (Prohibition on socialisation with clients) ‘The instructor will not fraternise or socialise, or attempt to do so, with the clients of the Employer for any reason outside the workplace.’ (2) According to the defendant, they included the regulations forbidding socialisation with students’ in the ‘Foreign Instructors Contract’ about 10 years ago. The purpose of enacting the aforementioned regulations forbidding socialisation with students is that there used to be some complaints raised by female students that foreign instructors asked for personal information of students such as their telephone numbers, or asking students to go out with them. However, even if the instructors concerned were asked for their explanation of the matters or were warned against such behavior, they declined to do so, saying that the company had no right to interfere in their personal affairs. Therefore, the defendant has decided to enact the aforementioned regulations so as to create an environment where both foreign instructors and students could concentrate on language lessons by abolishing their personal relationship. They also aim at preventing unnecessary troubles by providing for the guardianship of students since there may arise misunderstandings between students and foreign instructors because of the students’ lack of language ability. (3) The regulations forbidding socialisation with students are not included in company regulations for the Japanese staff. Even though problems related to romantic involvements may arise between Japanese staff and students, the defendant does not involve itself in such matters, since they are problems involving only the two parties. Incidentally, the Japanese employees only work as staff, not as instructors. (4) The General Union has made repeated formal demands to the company that it delete the regulations forbidding socialisation. (5) Among the ‘Recent examples of disciplinary actions and warnings’ listed in the ‘Complaint concerning relief of human rights violation’, is the case of JK, an instructor of the Toyama Sogawa School who was dismissed on 2 August 2000. His dismissal was retracted and he was re-employed by the company as he became engaged to and married the student concerned. 2. Regarding the treatment of Plaintiff B (1) After he joined the defendant’s Neyagawa School in 1993, Plaintiff B was transferred to Kyobashi School and then to Hirakata School, working as a contracted employee of the company until April 2001. (2) On 3 April, 2001, a woman who was a student of the defendant (hereinafter referred to as ‘Woman A’) visited its Neyagawa School, and made a complaint against the person in charge of the aforementioned school, that Plaintiff B persistently asked her to go out with him, visited her house, and was annoying her in many ways. Later, the person in charge of the school heard what Woman A had to say on 7 April 2001. Following this incident, Tony Byrne, manager of the defendant’s Foreign Personnel Section (in charge of personnel affairs of foreign instructors in the Kansai region) heard what Plaintiff B had to say on 13 April 2001. The aforementioned section manager understood that Plaintiff B insisted that Woman A had made a false statement to the company. (3) The defendant judged that Plaintiff B had rejected Woman A’s allegation of his annoying behavior and her assertion that she had been inconvenienced by him. As a result, the defendant dismissed Plaintiff B on disciplinary grounds, based on Article 13 of the Instructor’s Contract on 17 April 2001. The grounds of his dismissal for disciplinary reasons were based on his serious violation of the provisions of the Instructor’s Contract regulating personal contacts with defendant’s clients in a place other than his place of employment, thereby causing distress to Woman A. (4) Plaintiff B consulted the General Union regarding the aforementioned dismissal, which then made a formal demand for collective bargaining to the defendant, which refused the demand. Because of this, Plaintiff B filed a lawsuit against the defendant and Woman A, asking for confirmation of the invalidity of the dismissal and compensation for damages at Osaka District Court on 26 December 2002 (hereinafter referred to as ‘the lawsuit’, 1), whose proceedings are pending. The points at issue are whether or not Plaintiff B had a relationship with Woman A, and whether or not Plaintiff B had stalked Woman A, etc. 3. Measures against Plaintiff A Plaintiff A has never been disciplined in accordance with the regulations concerning socialisation with students. 2. Judgment on the complaint 1. Measures against Plaintiff B (1) Plaintiff B has demanded a retraction of his dismissal and an apology from the defendant, asserting that it was an unfair dismissal, whereas the defendant dismissed the plaintiff on the grounds of the aforementioned provisions forbidding socialisation with students. Since the plaintiff insists that the said provisions are invalid, we will judge the propriety of the provisions in the first place. (2) The reasons for the introduction of provisions forbidding socialisation with students are as asserted by the defendant in 1, 1 (2). It is true that as there are not a few students who are attracted to foreign instructors and many instructors work for a relatively short period, when they become romantically involved certain problems may arise. In this regard, the need for the aforementioned provisions can be recognized in order to avoid such potential trouble. However, the wording of the provision is, ‘In any interaction’, which includes all forms of socialisation limited not only to romantic involvements; therefore it is too vague and ambiguous, and too extensive to be used for regulations. Furthermore, even if it is interpreted within the scope of limited socialisation based on romantic involvements, employers cannot unilaterally prohibit socialisation of employees, which is essentially private and free behaviour. On top of this, employers cannot prohibit employees’ activities unrelated to their jobs outside their working places. Even though such socialisation between employees and clients might certainly cause undesirable circumstances for employers, and their rationality could be recognised if they were simply considered ordinary behavioral regulations which employees are obliged to make efforts to follow, such prohibitions would still be excessive since violations might constitute reasons for dismissal according to Article 13 of the Instructor’s Contract. The defendant too realises that its provisions prohibit personal socialisation of individuals which properly should be free; and, as recognised in (3), the defendant would not interfere in romantic involvements among Japanese staff. As for this point, the defendant insists that it does not have to apply the provisions prohibiting socialisation with students to the Japanese staff since they are all mere clerical staff. However, since the staff members also have a chance to associate with clients (students), there is no rationality in their assertion. In addition, since the provisions prohibiting socialisation with students prohibit any socialisation without limitation, as recognised in 1, 1 (5), even though one dismissal was retracted after engagement and marriage, they are applied to socialisation with marriage in mind, and as a result, constitute a cause of an obviously irrational decision. Therefore, as insisted by the defendant, even though the provisions have the purpose of avoiding trouble between instructors and students, and the necessity of such a purpose can be recognised to some extent, the rationality of prohibiting free and personal behaviour of employee by employer outside the working place cannot be recognised; neither can it be reasonable grounds for dismissal. Furthermore, even taking into consideration the fact that all the instructors are foreigners and the Japanese work as mere staff, applying the provisions only to foreign instructors is problematic from the standpoint of the principle of equality. The points listed above also apply to the aforementioned 1, 1 (1) [2] of Article 29 of the Instructors’ Working Regulations. Furthermore, from the principle of free contract, it is true that the employee Plaintiff B was employed by the defendant after agreeing that the provisions prohibiting socialisation with students would constitute a reason for dismissal. However, since an employee is generally in a weak position and it is in actuality almost impossible to make an objection to the regulations proposed by an employer, the above circumstances do not influence the above decision. Consequently, the provisions prohibiting socialisation with students and the aforementioned Article 29 are against public policy and good morals, and therefore should be considered invalid. (3) As stated above, inasmuch as the provisions prohibiting socialisation with students-which were the premise for the dismissal of Plaintiff B-are invalid, the dismissal is also invalid and should be retracted. In this respect, the defendant insists in this lawsuit that they dismissed Plaintiff B as his behaviour toward Woman A, such as visiting her house, falls under the category of ‘shadowing’ as defined in the Anti-Stalking Law. They also make the same assertion in this complaint. However, in the letter of dismissal the defendant issued to Plaintiff B, only the provision prohibiting socialisation is clearly stated as grounds for dismissal, and ‘shadowing’ is not listed as a reason. Therefore, there is no rationality in the position of the defendant, and at least, the dismissal on the grounds of violation of Article 11, Clause 16 of the Instructors Contract, and Article 29 of the Instructors’ Working Regulations, should be deemed invalid. (4) Moreover, according to the defendant’s corporation lawyer, they have now started revising the present Instructor’s Contract and Working Regulations in their entirety, intending to delete the aforementioned provisions prohibiting socialisation with students, and a new contract and regulations are to be decided on around this December. However, in actuality, while the dismissal of Plaintiff B was made on the grounds of violation of the provisions prohibiting socialisation with students, as stated above, such provisions and the dismissal are none other than invalid, and these things would not influence the above judgement. Such being the case, we recommend that the defendant delete the provisions prohibiting socialisation with students and retract the dismissal on the grounds of violation of the provisions.