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  • Case study about university contract termination of NJ reversed due to getting a lawyer

    Posted by Dr. ARUDOU, Debito on April 13th, 2010

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    Hi Blog.  What follows is a template for how you can reverse an imminent “termination through contract non-renewal” decision made by a workplace (in this case, a university) that unilaterally decides you’re too expensive.  This sort of thing is SOP for NJ academics in Japan’s higher education, and it will continue to be so if NJ academics continue to roll over whenever faced with job adversity.  What did he do?  He got a lawyer, and the school rolled over instead.  Read on.  Arudou Debito in Sapporo

    ///////////////////////////////////////////////////////////

    April 11, 2010

    This past December, just before winter vacation, the owner of the college where I teach called me into his office and announced in no uncertain terms that in 3 months, at the end of March, I would be fired.   After 24 years working for the school, with hardly any advanced warning, I was to be among the unemployed, and at an age (56) when it would be all but impossible to find a similar position in Japan.

    The owner, not so generously, said he would allow me to continue as a part-timer at the bottom of the pay scale, with a loss of health care benefits, at an income which, unless I came up with something to supplement it, would impossible to live on.  In addition, he made it a point to explain, though I might have thought I was fulltime, for the first 5 years, (when I taught at both his high school and college) I actually was a part-timer, and that I could expect my retirement package to reflect it; no small thing as severance pay is weighted towards the last years of employment, those 5 years will cost me nearly $150,000.

    Let me make it clear that I was employed at this school with the promise that it would be a permanent position, and that I would receive the same benefits as the Japanese teachers.  I never had a contract, and in fact, was told I did not need one because I was employed under the standard terms of employment (shugyou gisoku) that the Japanese employees received.   I paid into the pension plan, had health insurance, received bonuses.  I attended the meetings, worked the overtime.

    On being transferred to the college, I was told, because the Japanese teachers had extra duties, I would be expected to teach a few more classes.  In time I found myself teaching twice the standard load of 6 classes (at 12 classes), and in addition to doing the teaching of two, because the part-timers they had employed to help out couldn’t be bothered, I was doing the testing and grading of four teachers.  I carried this kind of load for probably 15 years or so.  But in time, and after a few college presidents came and left, the school policy gradually shifted away from emphasis on English language education, and my classes slowly underwent a transformation from being required subjects for all, to elective subjects available to fewer than half of the students.  In short, over the past 5 years the school slowly phased me out.

    As I believe that the circumstances I describe might apply to any number of foreign workers in Japan, I am writing in the hope you might gain from some of my mistakes.   First of all, verbal agreements mean nothing.   Insist on getting those promises in writing.   When I interviewed for my job at the high school, there were three people in the room, but 24 years later, two of them are dead, and the only person who might verify my story is the man I had to take to court.

    If you believe in labor unions, better join up before you encounter any problems.  Or if you do try joining a labor union, don’t let them know of your predicament, or else they will have nothing to do with you.   (I couldn’t even get them to recommend a lawyer.)  Basically labor union resources are reserved for members of long standing who have paid their dues.

    One little aside that was important for me.  For you teachers who are members of the private school pension plan, (Shigaku Kyousai), depending on your age, you do not need to work the full 25 years to qualify for your pension.  And for Americans (and other nationalities covered by similar treaties) if you have paid into your country’s social security system, you can get Japanese pension benefits depending on what you have paid into the system.

    Don’t put off getting permanent residency.   Your school loves you now?  You just don’t know when they might turn on you.  That can change with the next high school principal or college president.

    Finally, and most important of all, get a lawyer.  I simply would have been a dead man without one.  I was lucky enough to have a friend recommend one to me, and still luckier that he was willing to go to court.  It never seemed to even occur to my boss that I would or could litigate.  I had already received notice, the court date was set, and I was meeting with my lawyer.  It was March 30th and one day from termination, when I got a fax from my school’s lawyer rescinding it.  I’m back at work now as if nothing happened, though who is to say whether or not I won’t go through the same hell again next year.

    And genuine thanks to Debito.  Outside of a friends and family, he was just about the only one to return my e-mails.   Not sure that I would have gotten through this without his advice and support.

    ENDS

    15 Responses to “Case study about university contract termination of NJ reversed due to getting a lawyer”

    1. Norman Delaney Says:

      That really sucks.
      When I first came to live and work in Asahikawa in March of 1990, it was as a fulltime teacher/translator at the new sister school of a small American College. I thought I had found my dream job, for the rest of my life. Unfortunately, the school went bankrupt after only 3 years.
      I was suddenly out of a job and my work visa was about to expire soon. Fortunately, I was able to get a job at the oldest Eikaiwa school in the city, which was owned by an American and his Japanese wife. However, all during that time, I was making plans to marry my Japanese girl friend start my own classroom, fulltime. In 1996 the American owner sold to school and moved back to the USA with his family. Three months later, my own school was open and operating full time. I still have many part time jobs outside of my own classroom during the morning hours on some days, but the classes I like the best are all at my own little classroom. I have had permanent residence status since the year 2000. I will never again allow my financial future to be determined by a very small group of people, and neither should anyone else.

      – I see. So people working in universities should found their own university?

    2. Norman Delaney Says:

      @Debito
      Yes, they should. Do you have what it takes to make that happen?

      – No. Nor does just about anyone in this climate of shrinking tertiary education in Japan. You’re being unrealistic.

    3. Kane Says:

      I am interested to know how your lawyer planned to argue your case in court. If you could give details on how you got your employer to back down, it would be appreciated. From my experience of labour issues, it seems that employers are able to get away with blue murder.

    4. Luke Says:

      @ Debito’s second response, maybe he is being idealistic, but certainly not unrealistic, if school closures and bankruptcies are allowed to happen as they should, especially in the next 40 years or so. Then many of Japan’s boom time educational system should collapse allowing for a competitive opportunity for smaller more efficient schools!…BUT!! More likely than not the government will subsidize the Schools and continue more 赤字 business years! So he is being an idealist, but not unrealistic with what should be able to happen in the near future. Debito San, it’s not that the educational system in Japan is simply lacking students, it comes down to the fact that inappropriate assets have been misplaced into education, the big schools are just too big and those players who have done so should liquidize or downsize and allow competitors the chance to improve on their faults of not appropriately adjusting even in the 20 years of stagflation, why adjust when things can stay the same and the government will pay the bill.

      – Thanks for the response. Now please factor into your calculations the final arbiter: Monkashou accreditation. That’s the bottleneck, so it’s not a mere matter of economics. We’re all assuming, with the control-freak GOJ’s attitude towards katou kyousou (overcompetition), that we’re going to even allow “smaller is better than small” competition in the educational market (let alone the attitudes in most nations favoring old, esteemed, and large universities in the first place). Regardless of Monkashou’s monopoly powers, the university market is special and not subject to regular economic analysis. To assume that a university professor, disgruntled with his work, can go out and found his own university (especially as a NJ) is so unrealistic that it is theoretical sky pie (if not the “your own bootstraps” dogma espoused by self-made people who think their market forces apply everywhere).

    5. Jerry Says:

      @Debito – come on man, didn’t Gregory Clark do just that? If he can do it you certainly can.

      – No he didn’t.

    6. Jerry Says:

      you are correct – my bad

      – Thanks.

    7. GiantPanda Says:

      Labor Law in Japan is actually heavily weighted towards the employee – the main problems are (i) that the vast majority of people are unaware of their rights (and for NJ it is particularly difficult to find accurate information in English or other languages) (ii) the vast majority of employers flout them shamelessly and often; and (iii) even if aware of their rights, the vast majority of people are not willing to make the fuss that is necessary to get a flouting employer to sit up and take notice. In my experience, getting yourself a lawyer will make the employer sit up and take notice every time. This teacher did exactly the right thing, and had it gone to court I have no doubt he would have won. In nearly all cases, the company will settle (or offer the employee a large payment to just quietly go away) rather than fight a battle they will almost certainly lose.

      – Unless they’re Steven Van Dresser vs. Miyazaki International College. MIC lost.

    8. Luke Says:

      @Debito San. Yeah, I guess that comes down to government sanctioning monopolies in education in Japan. “Over-competition” as if there was some level of competition that could be considered too high. It’s a shame that the populace is too highly distracted from economic matters that the government can, through such ridiculous sounding notions as “over-competition”, in order to justify new measures that sanction yet more monopolies in the “market”, promote such policies. Oh and as far as market forces applying everywhere, it would be true except for everywhere that government interferes. It’s a darn shame it’s that bureaucratized, then again that is exactly what I should have expected, I get quite irritated though when the economics is sometimes ignored in a field such as education, as if the government should even have its hand in such an important field. It is well known that the reason such antiquated education systems exist is because there is no pressure, no competition… no innovation. Anyways, if anyone could do it besides the Koreans it would honestly be you imo. But, of course you would need the capital to do it.

      – As always. No money no cry. But I think my thinking on economics is a bit less doctrinaire. Anyway, agree to disagree. Thanks for the discussion. Back on topic.

    9. C.O.D. Says:

      From the Japanese companies perspective, they have to weigh what the NJ can do for them vs. the international image. I have worked in several Japanese companies. I always felt like I am being burned up from both ends, always running around at the begining and trying to find my niche. The stress trying to conform can be intense. Most people I know only do 2 years max. so I know well this territory. Its going to take more than just adding more NJ. The whole mindset towards NJ must change. I was always used for my power, sometimes skill, but I really had to go above and beyond what the Japanese could do. Unfortuanetly, service people in Japan are not well trained as opposed to the U.S. so this worked out, but youll end up really exerting much effort proving yourself.

      – We’re getting off topic. Bring it back.

    10. Taikibansei Says:

      “Unless they’re Steven Van Dresser vs. Miyazaki International College. MIC lost.”

      Actually, Steve worked at the tandai and not at MIC. As they share some of the same campus facilities and have the same rijichou (but not the same gakuchou), this is a common mistake. Still, while MIC has its own problems, the employment rules/faculty treatment there are quite different–e.g., it has never done anything quite that bad to its employees (the treatment of Steven by the Tandai was horrible)!

      Oh, and @Kane, if the situation the op describes is indeed accurate, then it would have been a relatively easy case to win. The key information is provided here:

      “Let me make it clear that I was employed at this school with the promise that it would be a permanent position, and that I would receive the same benefits as the Japanese teachers. I never had a contract, and in fact, was told I did not need one because I was employed under the standard terms of employment (shugyou gisoku) that the Japanese employees received. I paid into the pension plan, had health insurance, received bonuses. I attended the meetings, worked the overtime.”

      The employer has a duty to make a reasonable attempt to ensure employees know their employment status. I.e., the university would have to prove that the OP knew (or reasonably should have been expected to know) that he/she was a temporary/contract employee from the beginning, without pension, benefits, etc. This is usually a pretty easy thing to prove, by the way, as there would be signed contract copies, pertinent passages in the gakusoku and/or shuugyou kisoku (clearly delineating the treatment of faculty of the OP’s status), etc.–not to mention the fact that the foreign faculty member would normally have demonstrably different duties/responsibilities from full-time colleagues.

      However, in this particular case, there would appear to have been no contracts and no pertinent passages in the gakusoku/shuugyou kisoku, with the OP apparently having had throughout the same responsibilities/duties (including meeting attendence and committee service) of his/her Japanese colleagues. As a former administrator at a Japanese university myself, with some experience with this kind of situation, I would have to say that this case, as presented, would be unwinnable for the university. (Their attorney obviously agreed with me.)

      The OP is right, though, in that this will probably not be the end of it. Quite soon, they’ll most likely try to get him/her to sign something to “make your status here clearer”–don’t sign anything obviously without having your attorney glance at it first. After that, they’ll next probably try to set up the OP’s termination as arising from “economic reasons” and/or “necessitated by curriculum changes.” From the description provided above, the OP would have a very difficult time fighting this–however, as a permanent employee, he/she will be entitled to a buyout and at least a partial pension. (They are arguing that the OP is a part-time/contract worker to avoid having to pay the latter.)

      Good luck!

    11. john k Says:

      Yup, good advice. Get a lawyer…takes time and costs money, but the only way to get any form of justice.

      After i won my court case against a large estate agent company, i pushed further, got the Govt. dept. to investigate too. Now said company has been ordered to close for 15 days.
      http://www.asahi.com/national/update/0405/OSK201004050106.html

      I don’t see them laughing at me now, when i mentioned I would get a lawyer. They are lossing soooooooooooooooooooo much money because of their corrupt behaviour, which i exposed.

      Always always, get a lawyer!

      福屋工務店、上限超えた手数料で業務停止 不動産仲介
      朝日新聞 2010年4月5日21時42分

       不動産を仲介した際、宅地建物取引業法で定められた上限額を超える報酬を受け取ったとして、国土交通省近畿地方整備局は5日、大阪市北区の不動産会社「福屋工務店」に20日から15日間の業務停止命令を出したと発表した。

       整備局によると、同社の京都山科店が昨年3月に中古住宅付きの土地売買を仲介した際、個人の売り主と、不動産業者である買い主の双方から上限額の仲介手数料を受け取った上、業者からさらに「企画料」名目で25万円を受領したという。同社は整備局の調査に「慣習のようなもの」と説明。整備局は「組織的に容認していた」と判断し、近畿と名古屋市にある全65店舗を業務停止命令の対象としたとしている。

       同社は「仕事が早い」「熱意をもって」などのフレーズのテレビCMで知られる。同社は5日、「このような事態を招いたことを深く反省し、おわび申し上げる」とのコメントを出した。

       同社は昨年6月にも、奈良市内の住宅売買をめぐり特約の説明に注意義務を欠いたなどとして再発防止を求める指示処分を受けている。
      ends

    12. DS Says:

      Ihad a similar experience while working at a private junior/senior high school. I was employed with the understanding that there were no limits on how long I could work there, which is always a worry for foreign staff. As the school was brand new and growing every year, it seemed like a great situation to be in- get in on the ground floor and all that.

      Well, two years down the road and I found myself unemployed. The school chose to non renew my contract (at the end of February), as well as the contracts of two other full time foreign teachers. One foreign teacher (the last one hired, who had less than a year at the school) was kept on and has now received tenure at the school. By amazing coincidence, she was also the one with the closest connections to the school administration and corporate sponsors. Another full time teacher (the 24 year old eikaiwa tutor of the school VP’s wife) was also hired. The remaining classes were given to part time teachers hired through a dispatch company.

      We spoke to a lawyer about it, the labour board, city hall. All commiserated but there was nothing to be done.

    13. Bill Says:

      So what would you recommend to someone who is thinking of getting employed for so called “lifetime employment”? Just get it all checked by a lawyer?

      –Not just. Also be aware, ask the questions, walk into the job with the pitfalls fully in mind and measured against, as Debito.org has made clear for many years now. Please do some google searches specifically on Debito.org on this topic.

    14. Bill Says:

      Thanks. Could you recommend any lawyers? I would like to make sure the person I get to look at it is well-versed in the issue. I have asked some questions. The job in particular although advertised for the dreaded “native speaker” claims to be a lifetime employment position. I have asked if that is the same as the Japanese get but haven’t received a response. I remember reading somewhere here that if there is a contract, it isn’t lifetime employment, and I think I have asked Japanese tenured teachers and they never actually sign anything, so if I am given a contract (have no idea if I will even be offered) I should assume it isn’t the real thing? I know you have said it isn’t a good idea to attempt to work in Japan until retirement, but with the economy as it is in the USA right now the Japan option has more weight. Thanks to you, though, I am going in aware of many things because I don’t want to be let go when I am 56 and bald and my blue eyes don’t sell anymore!

    15. George Meegan Says:

      Dear Author Debito,

      Greetings, and thank you for the extraordinary website. I was recommended to you, and linked by a friend.

      I am currently going through a court case with a Kyoto lawyer against Kobe University. I was de-selected from the maritime department after 18-years. To be replaced by a chap a cool 25-years younger and with a zero marine background. That leaves the Faculty with almost no one left with a commercial marine background. Hardly the thing for students who are destined to go to sea aboard commercial shipping. And yes I suppose I was (until right now) a beloved figure about the campus!

      It did not matter a jot that I developed a top line method of getting students up to maritime English level, which I presented at 4-international conferences of the Sea. Currently Japan, I have been told, is “worst in the world in this vital field.”

      I’m a “Guinness champion” and over the years I have lead a number of expeditions of students. This made me something of a face of the university, local & national media.

      I am currently 58, balding and without any other work at all, and zip prospects. My old campus friends make no comment on this.

      I will let you know how it turns out. More grist for the mill Mr. Debito!

      My best wishes,

      George Meegan

      – Good luck to you, sir!

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