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Suit over dismissal to tackle thorny issue of language teachers’ employment status

by Simon Scott

Special To The Japan Times

Up until late last year, the home page of the ICC Language Schools website boasted a group photo of all its teachers and staff emblazoned with the slogan: “Please come and join the ICC family.” In the dead center of this photo, in pride of place in the front row, was teacher Sulejman Brkic.

In the picture, Brkic is a fresh-faced young man in his early 30s (he is 44 now), immaculately dressed in a well-pressed suit and tie — a poster boy, almost, for foreign language-school teachers in Japan.

But those were happier times.

Now the idea of being part of the “ICC family” has taken on a dark, bitter irony for Brkic, whose employment at the company was suddenly terminated after 22 years of service.

He says that he now sees that the concept of so-called “family” is really a construct used by employers such as ICC to conceal a darker reality.

“The word ‘family’ is often used by employers when speaking of . . . workers in order to hide the fact that they are really wage slaves. If we are a family, then who needs labor rights, right?” he says.

“If ICC had been my family, it would have enrolled me in the health-care system in case I got sick and given me paid holidays to rest. Instead of that, my ‘ICC family’ banished me when I complained about it. What kind of family does that?”

Brkic has now found himself locked in a legal battle with his former “family” that could set an important precedent for other workers in Japan.

At the heart of the case is the issue of what, in legal terms, the nature of his employment status was while he worked for the company.

Brkic taught an average of between 25 and 30 hours of French and English lessons per week at the school, for which he was paid only an hourly wage.

He was able to take holidays, but these were always unpaid.

ICC owner and director Armand Knafo argues that the contract between Brkic and the company was “not a contract of employment” but a “contract of business entrustment,” known in Japanese as a gyōmu itaku contract.

In other words, ICC’s case hangs on convincing the court that Brkic worked for the company as a private or independent contractor rather than a regular employee.

Brkic, who is Bosnian, was separated from his real family by the bloody Bosnian War.

Brkic first came to Japan in 1991, a year before war broke out in his home country, after meeting a Japanese woman in Paris whom he later married.

Brkic says the following years were a very stressful time for him, as he was so far from his family.

“The feeling that ruled at that time was one of helplessness” in regards to his family in Bosnia, Brkic says — of “not being able to do anything for them from here in Japan.”

One of his cousins died in the war and an uncle was imprisoned in a Serb concentration camp. Another family member was wounded and another escaped to Belgium as a refugee.

He says he remained in Japan partly because he had nowhere else to go.

More than 20 years on, Brkic believes that it was the issues of holiday pay and health insurance that ultimately led to his dismissal.

On July 8 last year, he sent a letter to Knafo requesting paid holidays and to be enrolled in the shakai hoken social-insurance program.

He asked for a total of 40 days’ paid holiday — 20 days per year for the last two years of his employment — that he believed he was legally entitled to as an employee.

Under the Labor Standards Law, paid holidays are calculated according to how many days an employee works per week, not the number of hours worked per day. So, if someone works five days per week, as Brkic did, they are entitled to 10 days’ paid holiday a year after the first six months of work, a number that increases incrementally with each year of employment until it hits the limit of 20 days. The law does not differentiate between full- or part-time employment.

Brkic also demanded that he be reimbursed for full transportation costs, especially for trial lessons, as this was work that teachers at the company did for free at the time.

Two days later, Brkic received a letter from Knafo — of which The Japan Times has obtained a copy — titled “Last Warning.”

To quote: “Dear Mr. Brkic, I consider your yesterday’s behavior towards me, as your employer, as an insult and a gross insubordination which could have resulted in instant dismissal. However, on humanitarian grounds, and considering the difficulties you might encounter in finding another job, after many prior warnings, I am going to give you a last chance to change your behavior and adhere to our school’s rules and guidelines. I tried to explain to you that I had a favorable solution to the transportation fees’ matter, but you refused to listen to me in an insulting manner. I request that you apologize to me in writing and that you promise not to repeat that behavior in the future.”

According to Brkic, the “gross insubordination” mentioned in the letter refers to an argument he had with Knafo about his transport fee on the sidewalk near the Machida ICC school.

Brkic says he had traveled all the way to the school from his girlfriend’s house in Saitama just to teach a trial lesson in Machida, on the other side of Tokyo, even though he would receive no money for the lesson, and he demanded to be paid the full return train fare. Instead, he was told he would only be paid the cheaper fare from his own home to the school.

“I didn’t shout at him. He was talking to me, I interrupted him and told him I couldn’t listen anymore and left,” Brkic says. He also denies he had received any previous written warnings.

Five days after that incident, on July 13, Knafo sent an internal email to the administrative staff at the school ordering them to begin reducing Brkic’s teaching hours and start monitoring him closely.

To quote from that email, which The Japan Times has seen: “Don’t give new trial lessons to Sulejman Brkic without getting permission from the principal. Also, please report on his behavior, attitude and dress code on a regular basis.”

The following day, a letter was sent by Zenkoku Ippan Tokyo General Union, commonly known as Tozen, declaring Brkic’s union membership to the company and backing his request for paid holidays and enrolment in the social insurance program.

Brkic continued to work at ICC but he says the atmosphere at the school changed dramatically.

“I was, like, ‘Let’s fight this together,’ but all my colleagues, with whom I got on with really well, started to keep their distance. I eventually became a leper,” he says.

The union entered into collective bargaining with ICC to try to reach some sort of compromise on the issues surrounding Brkic’s working conditions.

But these negotiations fell apart, and on Oct. 19 he received a letter of dismissal from the school and was fired.

In a written statement, Knafo explains why Brkic was dismissed: “The main reasons for the termination of the contract are the fact that Mr. Sulejman posted extremely inappropriate comments on the Internet which could cause considerable damage to the school’s reputation and he also ignored our repeated requests to delete said comments and to cease propagating such material.

“In addition, his conduct during his lessons was contrary to our policy and we decided that there was no prospect of improving the situation.”

The “inappropriate comments” mentioned above most likely refer to a number of postings Brkic made on Facebook, where he criticized ICC and referred to them as a “black company.”

He also runs a left-wing political blog called Tokyo Spring and organizes a group that meets monthly under the same name in a Tokyo cafe. Extracts from this blog, his personal Facebook page and his Twitter account were submitted as evidence during the hearing process by ICC.

The evidence included a number of postings about black companies in Japan where ICC is named, as well as apparently unrelated political material, such as a photograph Brkic posted on Facebook of Ahn Jung-Geun, the Korean independence fighter who assassinated Japanese Prime Minister Hirobumi Ito in 1909.

In its court submission, ICC claims that these political postings hurt their relationship with Japan’s Defense Ministry, one of the school’s customers, although it provides no evidence of how this relationship was adversely affected.

Brkic says that despite repeated requests from both sides to take the postings down and the fact it may damage his own case, he will not be silenced.

“I am not going to stop. That is how freedom of expression gets damaged — a little here, a little there. Then you end up with a state secrecy law. . . . It is all we have: our voice, our speech.”

Brkic’s dismissal is now a matter for the courts, as the union has launched a lawsuit calling for ICC to clarify Brkic’s relationship with the company, a type of suit known as chii kakunin, or “confirmation of position.”

The lawsuit, filed at Yokohama District Court on Nov. 29, basically seeks to establish whether Brkic is still employed by the company, but in effect it is an attempt to overturn what the union believes was an unfair dismissal.

Brkic and the union are also suing for all the back wages from the time Brkic was unable to work following his dismissal, as well as the legal fees.

Contacted for ICC’s response to accusations made by Brkic, Knafo declined to comment beyond a short statement (part of which is quoted above), citing a desire “to avoid damaging Mr. Brkic’s reputation and credibility” and considering that the case is going through the courts.

To date, there have been two hearings, the first in January and the second in March, where both sides submitted briefs to the court. There are likely to be around six or seven more hearings before testimony gets underway early next year.

Tozen General Secretary Louis Carlet says the union cannot accept the “abusive treatment of a dedicated employee who simply wanted to exercise his rights under the laws of Japan.”

For “22 years, ICC treated Sulejman like an employee both in word and action, not a gyōmu itaku contractor. Only after Sulejman joined a union and asked for paid holidays — as is his right — did ICC consult a lawyer and begin to claim Sulejman was a private contractor. Only then did ICC change the language they use and remove the website photo of the ‘ICC family’ with Sulejman in the middle. Sulejman was fired for asking for paid holidays and joining a union, his rights under labor law and the Constitution. That’s why the firing is illegal,” he says.

Carlet believes the language ICC used in the “Last Warning” letter is clear evidence that Brkic was not a private contractor.

He points to the first sentence in the letter, in which Knafo clearly refers to himself as the “employer.”

Calling Brkic “insubordinate” in the letter is also additional proof he had the status of an employee, the union argues.

“In the case of a contractor, like gyōmu itaku, you can’t give orders to the person. It is illegal to give orders to a contractor,” he says.

The letter’s mention of Brkic’s noncompliance with official ICC “rules and guidelines” — such as by not following the school’s “dress and appearance code” — also suggest that Brkic was an employee, Carlet believes.

He adds that Brkic was also being taxed at the rate company employees are normally taxed, not at the lower rate used for private contractors.

At the root of the disagreement between Brkic and ICC about the nature of his employment status is the fact that for the whole 22 years he worked at the company, he never had a written, signed contract.

Yet, according to Carlet, the absence of a written contract actually points to the fact he was an employee, not a sub-contractor.

“Gyōmu-itaku is always with a contract. They are saying he is a contractor without a contract — that is ridiculous.”

Despite all the bad blood that now exists between him and ICC management, Brkic says that all he really wants is his old job back.

“I loved it. I loved my students. I had great relations with the students, with the staff, with everyone,” he says. “I’d take my old job back in a minute.”

Comments and story ideas: community@japantimes.co.jp

  • Fed up with whatever

    This gentleman’s fight for his rights is a noble one, but how much easier would it be to simply sue for the money he is owed now that he’s a “contractor” but had taxes withheld by his employer at a higher, “employee” rate? Hit em where it hurts, man.

    • bsulejman1

      I am broke, the thing to do would be to go after the money
      Thanks a lot for your comment

  • bsulejman1

    Thank you!
    S.

  • bsulejman1

    I have no visa problem
    As for improving my situation, then I should go after the money
    I am broke but through this fight I have regained some of my dignity
    And you don’t know why I FINALLY decided to demand my rights
    Anyway, still, thank you for bothering to comment, and this article is only one part of me

  • bsulejman1

    Thank you!

  • bsulejman1

    Thanks!

    • Ryan

      Douitashimashite. And thank you. I found fellow Anarchists thanks to this article. I had thought that Japanese Anarchists were very rare since the 1930s. (The black and red symbols and flags were a dead give-away.)

  • bsulejman1

    Well, you are a bit harsh but that’s how you see it, I have quite a few great friends and their “attention” is enough for me, causing myself to myself the state of bearable misery I am in right now is not worth the attention you are talking about, I also had great attention from my students during my 22 years as a teacher, thanks anyway

  • happyjapan

    More exploitation of foreign workers by Japanese employers. I hope Mr Brkic sorts out his problems, but this should serve as a warning: Even after 22 years, foreign employees are treated as disposable and are defrauded., even though the J Gov have no problem sucking their taxes and charges. People should not come here to work, as this is the reality you will face.

    • bsulejman1

      Thank you very much!

  • MeTed

    Admirable of you to stand up after 22 years. I don’t think the company has a leg to stand on. Regardless of your political opinions , a company has failed to follow the law. I hope the legal case goes well for you.

    • bsulejman1

      Thanks a lot!