Oita District Court Ruling March 3. 2020 (p.143, Rodo-hanrei #1231)

  In this case, Real kantei Appraiser X (note, Kantei here means appraisal), who was registered as a director of Company Y, which operates a real estate appraisal office, claimed that the termination of his contract was illegal and he was harassed, and sought recognition of his status as an employee and compensation for damages.  The court recognized his status as an employee and ordered the payment of unpaid wages, etc., but did not recognize the harassment.
  The court denied X's claim for consolation money in response to Y's failure to pay X's social insurance premiums.  There appear to be several cases in which the liability of the company that did not pay premium for economic loss were called into question (see Commentary on right of P. 146, Rodo-hanrei #1231), but mental suffering seems to be less debated.  This section does not specifically examine this issue.
  In this section, we will examine X's employee and harassment.

1.X's employee status
  The decision, pointing out a variety of circumstances, acknowledged X's status by assessing that X was (1) under Y's supervision and instruction, (2) working with temporal and geographical constraints.
  Let us compare this with the recent judicial precedent (Shin-Ai-Gakuen Case, Yokohama District Court Ruling Feb. 27, 2020, p57. Rodo-hanrei #1226, p388. Rodo-hanrei-dokuhon 2021) which found that the employee status was that of a nominal director.
  In the Shin-Ai-Gakuen case, not only the typical employee status issues that fall under frameworks of (1) and (2), but also frameworks to evaluate whether he/she has supervisor status (Article 41, sub-para.2 of the Labor Standards Law), which are (i) unity with management, (ii) discretion, and (iii) treatment, were taken into account, and this system is designed to comprehensively judge employee status and supervisor status.
  This may mean that the issue of the employee status of a nominal officer is not necessarily a matter of the choice between supervisor status and employee status, but may be a combination of the nature of both, and to recognize the employee status, it is necessary to comprehensively evaluate the circumstances of both.
  In response, this judgment first denies the supervisor status of X.  The main points are that he did not work at all as a director (Lower Left to Upper Right of p.153, Rodo-hanrei #1231).  Next, the court affirmed the employee status of X under the frameworks of (1) and (2) above (line 7 to line 21 of right of p.153).
  In this way, it seems that this decision adopted a framework different from the Shin-Ai-Gakuen case.
  Nevertheless, both cases share the premise that both employee status workmanship and supervisor status are at issue.  On the contrary, since this case is a case in which supervisor status can be clearly denied, it is no longer necessary to comprehensively judge the characteristics of employee status and supervisor status, and if officer status was recognized to some degree, it seems to have been judged in the same framework as the Shin-Ai-Gakuen case.
  In practice, it should be understood that it is not only easy to affirm the employee status of a nominal director, but also that even if there is some supervisor status aspect, the employee status may be accepted, taking into consideration the case of the Shin-Ai-Gakuen Case.

2.Harassment
  The court judged that neither in this case constitute harassment because there were problems on the part of X.  The events are (1) the superior for X ordered him to go to work on Sunday when warnings of heavy rain, storms, and floods due to typhoon were issued, and (2) he was told that Y was taking procedures to fire X after being told "you are really useless, aren't you?"  As for (1), X was at fault in that the work assigned with plentiful time was not completed even after the promised date, and the order to attend work by Y is considered to be reasonable.  With regard to (2), X also contradicted and conversely menaced his superior, and therefore the superior's language and conduct did not constitute harassment.
  In other words, even though it was considered that there were problems with their superiors' words and actions for some degree, the court judged the applicability of harassment comprehensively with X's circumstances.
  This may raise the question about harassment as to whether is a one-sided violation by a superior, and that the circumstances on the part of the victim should not be an issue.
  However, the existence of harassment is judged on the basis of the standards of the general public, and (1) if the victim is at fault, the content of directing the work while scolding such failure will inevitably become more severe in proportion to the fault.  In addition, (2) in cases where the victim's side contradicts or threatens the other side, the impact of harassment may be regarded as limited, in other words, the behavior of the victim's side may be regarded as making the behavior of the superior more severe.
  In this way, it is necessary to comprehensively judge not only the behavior of the superior but also the behavior and circumstances of the victim, rather than judge the applicability of harassment separately.

3.Practical points
  Concerning harassment, the remarks of superiors such as (3) Are you color blind?   Are you deaf?   Are you really a real estate appraiser?   You're not a match for elementary school students., were also problematic.
  In response, the court found that these statements could not be admitted in the first place because the superior denied the statement and there was no other evidence to support X's assertions.
  Such a judgment does not fit with the recent trend in judicial precedents, in which a discrepancy between the assertions and statements of the company and its employees is not treated as impossible to prove on its own, and the reasonableness of each claim is examined on a case-by-case basis.  At first glance, it seems to be a sloppy judgment.  In addition, since there is a nuance for passively evaluating X's personality, we cannot deny the possibility that if only these remarks were picked out, they would be regarded as harassment.
  However, if it is right, this should be evaluated not only by determining whether each of the above-mentioned four remarks was made, but also by including the words and actions and circumstances of X, as in 2 (1) and (2) in above.  If, for example, X had a situation in which X had talked with his superior in a situation where X's delivery date and quality of X's work were a problem, it would be unavoidable if his supervisor's remarks became severe as described in (1) above.  In terms of "color blindness," for example, given that the materials prepared by X used the wrong in colors, the need for instruction in color usage is recognized, and although there are some aspects of going too far as expressions to strongly encourage X's self-awareness, it may have been the case that the superior had to say so strongly.  If we look at the above four remarks with such an awareness of the issue, we find that these statements are all statements related to some kind of guidance, and are not solely for the purpose of denying X's integrity as a person.  Therefore, there should be some background such as exchanges and situations leading up to these statements.
  That is to say, it is a matter that requires a comprehensive assessment, and there are problems which seems to have some kind of reason on the part of the superior, but the court seemed to have disposed of the matter simply without going into it.
  Furthermore, since (1) and (2) in 2 above are denied and there is no harassment other than the four statements in (3), it is doubtful whether X can be regarded as really suffering from mental distress even if these four statements could be regarded as harassment.
  In this way, it should not be construed that there is no proof, and the superior or the company was not responsible, because the court is simply dealing with the remarks in (3) as a matter of evidence.  For example, if an employee actually suffers mental problems and suffers serious damages, and the reason is a similar statement from a superior, it is not easy to conclude that there is no proof because there is a discrepancy between the testimony of the employee and his or her superior.

※  Japanese original

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