"Power harassment" (パワーハラスメント - pawahara), a term describing workplace bullying where a superior abuses their hierarchical position to inflict mental or physical distress on subordinates, is a significant and recognized issue in Japan. Its detrimental impact is acknowledged not only within private enterprises but also within the public sector. While the legal frameworks differ, the core issues of maintaining a respectful workplace and addressing severe misconduct hold common principles. Examining how Japanese law, particularly through its judiciary, addresses egregious cases of power harassment in the public sector can offer valuable insights for corporate compliance, even for private companies operating in Japan. This article will explore a notable public sector dismissal case related to power harassment and draw broader lessons on workplace conduct, disciplinary standards, and the legal grounds for termination in Japan.

Understanding "Lacking the Requisite Fitness" as Grounds for Dismissal

In Japan's employment law, a distinction exists between disciplinary dismissal (chōkai kaiko or chōkai menshoku for public servants), which is punitive for misconduct, and ordinary dismissal (futsū kaiko), based on non-disciplinary grounds such as poor performance or redundancy. In the public sector, an equivalent to ordinary dismissal is "administrative dismissal on grounds of non-disciplinary reasons" (bungen menshoku).

The Local Public Service Act (地方公務員法 - Chihō Kōmuin Hō) governs the employment of local government employees. Article 28, Paragraph 1 of this Act outlines the grounds for bungen menshoku, which can occur against the employee's will. Item 3 of this paragraph specifies one such ground as "when the person is deemed to lack the requisite fitness for his/her position" (その職に必要な適格性を欠く場合 - sono shoku ni hitsuyōna tekikakusei o kaku baai). Severe, persistent, and irremediable power harassment by a public servant can be, and has been, interpreted as constituting such a lack of requisite fitness for their duties.

A Case in Point: Dismissal of a Local Public Servant for Egregious Power Harassment

A significant case that reached Japan's Supreme Court involved the bungen menshoku (administrative dismissal) of a firefighter employed by a local municipality. The dismissal, effective August 22, 2017, was based on a long series of power harassment incidents committed by the firefighter, who held positions such as squad leader and platoon leader, against subordinate colleagues.

The harassment, spanning over five years (primarily from 2012 onwards), involved approximately 80 documented acts against nearly 30 colleagues, representing a substantial portion of the fire department's staff. The nature of the conduct was varied and severe, including:

• Physical Violence: Assaults during training, such as striking colleagues or forcing them to catch heavy objects with their heads.
• Verbal Abuse: Threats like "I'll beat you to death."
• Demeaning and Obscene Behavior: Forcing exposure of private parts during training.
• Invasion of Privacy: Forcibly extracting private information from colleagues' mobile phones.
• Coercion and Retaliation: Forcing colleagues who expressed fear of him to perform dogeza (kneeling and bowing deeply in apology or submission), and making statements suggesting retaliation against those who might report his behavior.

The firefighter subsequently received a summary court order imposing a fine for some of these acts of violence.

Lower Court Proceedings:
The firefighter challenged the dismissal. The Yamaguchi District Court, in a judgment on April 14, 2021, and subsequently the Hiroshima High Court, on September 30, 2021, sided with the firefighter, revoking the dismissal. These lower courts acknowledged the problematic nature of the firefighter's conduct but considered factors such as the unique, somewhat "open" and hierarchical culture of the fire department, a perceived tendency for superiors to be strict, and a lack of prior formal opportunities for the firefighter to correct his behavior. They concluded that the misconduct was not solely attributable to the individual's incorrigible nature and that dismissal was too harsh a penalty.

The Supreme Court's Reversal (September 13, 2022):
The Supreme Court, in its judgment on September 13, 2022, overturned the lower courts' decisions and upheld the dismissal. The Court emphasized that while appointing authorities have discretion in bungen dismissals, this discretion is not unlimited and must be exercised rationally. For a dismissal, which has such grave consequences for the employee, the exercise of this discretion demands particular rigor and caution.

The Supreme Court found that the firefighter's conduct, considering its prolonged nature, severity, multiplicity of victims, and the variety of abusive acts (including criminal behavior), demonstrated a lack of general fitness required for a public servant, particularly a firefighter. The Court deemed it not unreasonable to conclude that the deep-seated negative traits evidenced by such behavior were not easily correctable, even if formal guidance or training had been offered.

Crucially, the Supreme Court highlighted the detrimental impact of the harassment on the fire department's work environment and operational efficiency. It stressed the importance of close communication and trust among firefighters for ensuring public safety, an aspect severely undermined by the harassment and the fear of retaliation it engendered among colleagues. The Court concluded that integrating the firefighter back into such an organization while ensuring its proper functioning would be exceedingly difficult. Therefore, the appointing authority's decision to dismiss was found not to have exceeded the bounds of rational discretion, even considering the "unique" workplace culture arguments, which the Supreme Court did not find to be a decisive mitigating factor against the severity of the sustained harassment.

The Standard of Review: The "Shōwa 48 Saiban" Framework

The Supreme Court's approach in reviewing the legality of bungen menshoku is guided by a landmark judgment issued on September 14, 1973 (often referred to as Shōwa 48 Saiban - 昭和48年最判). This judgment established a critical framework:

1. Discretion of Appointing Authority: The authority responsible for personnel decisions (the "appointing authority") possesses a certain degree of discretion in making bungen dispositions.
2. Limits on Discretion: However, if the authority's judgment in exercising this discretion deviates from what is rationally permissible and acceptable societal norms, it constitutes an abuse of discretion, rendering the disposition illegal.
3. Heightened Scrutiny for Dismissal: In cases of dismissal, which results in the loss of a public servant's status and livelihood, the evaluation of the authority's judgment must be particularly strict and cautious.
4. Comprehensive Evaluation: The determination of "lacking the requisite fitness" should not be based on isolated incidents. Instead, it requires a comprehensive evaluation of:
   • The nature, mode, background, and circumstances of individual acts and attitudes.
   • An interconnected assessment of the series of behaviors.
   • General factors such as the employee's career history, personality, character, and social environment.

This holistic approach means that a pattern of severe misconduct, like the power harassment in the firefighter case, can indeed lead to a finding of a fundamental lack of fitness for the position.

Factors Weighed by the Supreme Court in the Firefighter Harassment Case

In applying this framework to the firefighter's dismissal, the Supreme Court focused on several key aspects:

• Severity, Duration, and Repetition: The harassment was not an isolated event but a pattern of behavior spanning over five years, involving approximately 80 incidents and affecting a large number of colleagues (nearly half the fire station's staff). The acts included physical violence (some criminally sanctioned), verbal abuse, obscene behavior, and serious invasions of privacy.
• Character and Incorrigibility: The Court found that such prolonged and malicious conduct, demonstrating a lack of societal common sense, pointed to a coarseness of character incompatible with the general fitness required of a public servant. Given the frequency and nature of the acts, it was not unreasonable to conclude that these character traits were not easily correctable and that an opportunity for improvement was unlikely to yield results.
• Impact on Workplace and Public Service: The Court underscored the significant negative impact on the fire department's workplace environment, which is detrimental to maintaining the efficiency of public duties. In an organization like a fire department, where close interpersonal communication and trust are vital for the safety of both personnel and residents, such an impact is particularly grave.
• Fear of Retaliation and Organizational Disruption: The acts of harassment included threats of retaliation against those who might report the behavior. The resulting fear among a considerable number of colleagues made it difficult to envision the firefighter being reintegrated into the organization without severely compromising its proper and safe operation.
• The "Workplace Culture" Argument: The Supreme Court explicitly stated that even if there was a tendency for superiors to be strict within that particular fire department, this did not alter the conclusion that the dismissal was permissible given the egregious nature of the sustained harassment.

Lessons for Corporate Compliance in Japan: Parallels in the Private Sector

While the discussed case pertains to a public servant under the Local Public Service Act, the underlying principles concerning unacceptable workplace conduct and the justification for termination resonate strongly with the private sector, governed by the Labor Contract Act (労働契約法 - Rōdō Keiyaku Hō).

1. Clear Definition and Prohibition of Harassment:
   Japanese law now mandates that employers take measures to prevent power harassment (amended Act on Comprehensively Advancing Labor Measures). Private companies must establish clear internal policies defining and prohibiting power harassment, sexual harassment, and other forms of workplace misconduct.
2. Robust Investigation and Fair Procedures:
   Upon receiving a harassment complaint, employers have a duty to investigate promptly, thoroughly, and fairly. The principles of due process, while perhaps framed differently than in U.S. contexts, require that accused individuals are given a chance to respond to allegations.
3. Disciplinary Measures: Proportionality and Justification:
   For private sector employees, dismissal is considered the ultimate sanction. Japanese labor law generally protects employees from unjust dismissal. Article 16 of the Labor Contract Act states that a dismissal lacks objectively reasonable grounds and is not considered socially appropriate will be treated as an abuse of the right to dismiss and is therefore void (kaikoken no ranyō).
   • Progressive Discipline: Usually, for less severe misconduct, employers are expected to use progressive discipline (warnings, reprimands, suspension) before resorting to dismissal.
   • Grounds for Dismissal: However, severe or repeated harassment that fundamentally breaches the trust relationship essential for employment, or demonstrates a clear and objective lack of fitness for the role, can constitute valid grounds for dismissal. The firefighter case, by analogy, shows that a long pattern of egregious behavior can meet such a high threshold.
4. Evidence and Documentation are Paramount:
   Thorough documentation of harassment incidents, witness statements, investigation reports, any warnings issued, and corrective actions (or the employee's failure to respond to them) is critical in justifying disciplinary action, especially dismissal.
5. Employer's Duty of Care (Anzen Hairyō Gimu):
   Employers in Japan have a legal duty of care to provide a safe and healthy working environment for their employees. Tolerating or failing to address power harassment can be a breach of this duty, leading to potential civil liability for the company.
6. The Fading "Cultural Excuse":
   Historically, some forms of strict or even harsh interactions might have been tolerated under the guise of "workplace culture" or "指導" (shidō - guidance/coaching). However, legal standards and societal expectations are increasingly intolerant of abusive behaviors. The Supreme Court's stance in the firefighter case, discounting the "unique workplace culture" argument as a primary mitigator, signals this trend.
7. Consistency in Application of Rules:
   Applying workplace rules and disciplinary procedures consistently is crucial for fairness and legal defensibility.

Implications for U.S. Companies Operating in Japan

For U.S. companies with operations in Japan, these points translate into several key action items:

• Localized Global Policies: Adapt global codes of conduct and anti-harassment policies to align with Japanese legal requirements (including the power harassment prevention law) and cultural nuances, ensuring they are clearly communicated to all local employees in Japanese.
• Comprehensive Training: Implement regular training for all employees and managers on what constitutes harassment under Japanese law, company policy, reporting mechanisms, and the consequences of violations.
• Accessible Reporting Mechanisms: Establish confidential, reliable, and culturally appropriate channels for employees to report harassment without fear of retaliation.
• Expert Local Legal Counsel: Given the high legal hurdles for dismissal in Japan, always consult with experienced local employment counsel before taking disciplinary action, particularly for termination. They can advise on the adequacy of the investigation, the proportionality of the intended sanction, and the procedural requirements to minimize legal risk.
• Proactive Culture Building: Foster a workplace culture that genuinely values respect and actively discour древ discourages harassment, rather than relying solely on reactive disciplinary measures.

Conclusion

The Supreme Court's decision in the case of the dismissed firefighter sends a strong message: severe and persistent power harassment is not to be tolerated and can, even in the structured environment of public service employment, constitute grounds for the ultimate sanction of dismissal due to a fundamental lack of fitness. The judgment reinforces that an individual's conduct, if it systematically undermines the work environment, trust, and operational integrity of an organization, can outweigh arguments based on unique workplace cultures or even perceived deficiencies in prior formal corrective opportunities when the behavior is deemed egregious and indicative of an incorrigible character flaw.

For private corporations, including U.S. companies operating in Japan, this public sector case serves as a potent reminder of the high standards for workplace conduct expected and the serious view taken of power harassment. While the specific statutes differ, the overarching principles of protecting employees from abuse, ensuring a functional work environment, and the employer's responsibility to act decisively against severe misconduct are universal. Proactive prevention, robust investigation, and fair, legally sound disciplinary processes are not just best practices but essential components of sustainable and compliant operations in Japan.