New NHK President Katsuto Momii made headlines around the world with his claim that “comfort women” have been a common feature of conflicts involving “every country.” Using sex slaves in wartime, he said, was only wrong according to “today’s morality.” Causing great concern to press-freedom advocates, he also insisted that “when the government says ‘right,’ we cannot say ‘left.’ “
On his first day in the position, he asked all 10 members of the public broadcaster’s executive board to submit their signed, sealed but undated letters of resignation. This was revealed at a meeting of the Lower House’s Committee on Internal Affairs and Communications on Feb. 25. All the executives agreed.
The president of NHK has the authority to dismiss an executive who fails to fulfill his or her duty, but not without the agreement of the rest of the Board of Governors. A lawmaker who attended the Diet meeting suggested that Momii intends to dismiss executives who have different opinions to his own. Momii retorted: “I don’t think executives feel intimidated by my holding on to their resignation letters. It’s common practice.”
Do workers at ordinary companies really hand over resignation letters to their presidents in advance, potentially giving management the freedom to fire them at will?
Article 16 of the Labor Contract Law stipulates the following: “A dismissal shall, if it lacks objectively reasonable grounds and is not considered to be appropriate in general societal terms, be treated as an abuse of the right to dismiss and be invalid.” This is the famous “principle of abuse of the right to dismiss” (kaikoken ranyō hōri) that has come up many times in this column. Dismissal of employees is invalid without rational and reasonable grounds even if a company president collects letters of resignation in advance, just as it is in cases when a boss puts pressure on workers to resign. In fact, such a pre-signed resignation letter is likely to be deemed invalid regardless of other factors.
Needless to say, there is an overwhelming imbalance in power relations between employers and employees, with labor the subordinate in the relationship. This being the order of things, if a president was to say to workers, “Hand me your letter of resignation signed, sealed and undated,” the majority of workers would tend to submit without resistance. A resignation based on such a letter is likely to be deemed invalid because it reflects a worker’s desire to pass the president’s test of company loyalty rather than their true intention to quit.
Courts would have to find such a resignation letter invalid if the employer was deemed to have known that it did not reflect an intention to resign. In a December 2002 Tokyo District Court case, a plaintiff sued Showa Women’s University claiming to have suffered after the university president forced the plaintiff to apologize for deteriorating relationships between staff at the school. The plaintiff submitted a letter of resignation as a symbolic show of remorse despite having no intention of resigning. The judge determined that the employer knew the plaintiff had no such intention and ruled the letter void based on Article 93 of the Civil Code, relating to a principle known as shinri ryūhō — literally meaning “withholding truth” but referring legally to intentionally expressing something contrary to your true will. This article basically says that your expression of intent is valid even if it is not meant — unless the other party also understands it is untrue, in which case it becomes invalid.
On one hand, the Momii resignation letter scandal is a matter between the president of NHK and members of its executive board, not between a regular employer and employees, so labor law does not directly apply. On the other hand, Article 362 of the Corporation Law stipulates that executive board members are responsible for supervising important duties of the board, including those of the board’s chairperson. Members of the board thus have the ability to pass a resolution to remove the chair. NHK is technically a special quasi-governmental corporation (tokushu hōjin) so the titles of its board are different, but the law applies analogously. Momii’s move to force board members to submit undated resignations for him to hold over them while he submits no such letter to them is therefore tantamount to a declaration of dictatorship at NHK.
Momii formerly served as president at Unisys Japan and in executive positions at Mitsui & Co. He says that his demand for and withholding of the resignation letters is commonplace in the business world, and perhaps that is true in the sense that the illegal actions of large Japanese firms often go unchallenged.
His comment reminds me of an old joke haiku written by TV personality and actor-director “Beat” Takeshi Kitano: “Aka shingo / Minna de watareba / Kowakunai” (“Red lights are not scary if we all cross at the same time”). Clearly Momii is appealing to the same principle when he defends his actions as “common practice.”
Momii apparently cares more about the social acceptance than the ethics of his actions. He seems to be suggesting that his behavior is acceptable simply because it is commonly done. If the new NHK chief is allowed to get away with this line of reasoning, what is now an individual case focused on Momii will set a precedent that should concern us all.
Hifumi Okunuki teaches at Sagami Women’s University and serves as executive president of Tozen Union (Zenkoku Ippan Tokyo General Union). She can be reached at firstname.lastname@example.org. On the second Thursday of each month, Hifumi looks at cases in Japan’s legal history to illustrate important principles in labor law. Comments: email@example.com