Mandatory Retirement as an "Unreasonable Dismissal”

The ongoing labour dispute at Shitennoji University (IBU)

Like the rest of Japan, the General Union is facing an aging membership and issues of retirement are at the forefront of our work. As a labour union, we do not want a society where everyone is forced to work till death, but we also recognise that many of our members are part time workers with no pensions and cannot simply retire.

Many of our members, especially at universities, are on unlimited term contracts and some universities, in an attempt to undermine this employment security, have established unreasonable retirement conditions despite the status of our members as unlimited term contract workers. While there is nothing in the law that bans the establishment of a retirement age, there is nothing in the law that limits how old you can be when you apply or get an unlimited term contract. This makes it highly unlikely that a retirement age set for only one or two years after conversion to an unlimited term contract can be considered reasonable. This is because these retirement regulations would be undermining the benefits set out in the Labour Contract Law. namely of employment security. 

In the case below, our dealings with the ministry of labour, is leading us to the conclusion that forced retirement, especially in cases where the unlimited term contract was granted for only a few years prior, could be treated as a unreasonable dismissal, not a retirement.

 

1. History

Union member A, who was a part-time lecturer at this university, signed an unlimited-term employment contract on March 27, 2019. He had turned 65 three months earlier, and the university's employment regulations stipulated that the retirement age was 65.

However, he was given the same schedule in April 2019 and the following April 2020 as before and continued to work.

In the fall of 2020, the union member was suddenly informed by the university that his contract would not be extended for the next academic year. However, a short time later, he received a letter from the university asking him to confirm his availability for the 2021 Spring semester and indicate whether he could teach face to face classes or not. In addition the letter stated that they regarded his classes to be the same as the year before. The union member contacted the university through the union to confirm the situation and after a delay of over six weeks he  received a reply saying, "That last communication was sent by mistake and your contract will end at the end of the 2020 academic year”. It was now only a month and a half before the new academic year would begin for 2021.

The union demanded that the member's employment be continued based on an unlimited-term employment contract, and collective bargaining was held.

During the negotiations, the university simply reiterated that the contract was terminated based on the 'mandatory retirement age of 65' in the working regulations, and that it was a mistake to inform the employee that he would be asked to continue working next year as they did this year. During the negotiations, it became clear that there were a number of lecturers who were working beyond the age of 65, but there was no explanation as to the relationship between this fact and the sudden notice of contract termination to the union members. The university then requested a lawyer to negotiate a solution with the union, but these negotiations failed to reach an agreement. So, the union member as an employee of the university, went to the Osaka Labor Bureau and asked for its assistance under the Individual Labor-Management Dispute Resolution System.

2. Union member's claim

The union member submitted documents and materials to the Osaka Labor Bureau and made the following claims, including during the interview.

a. The uniform setting of "the mandatory retirement age for those who convert to an unlimited-term employment contract is 65" in the university's working regulations is contrary to the government's guidelines on the relationship between unlimited-term employment contracts and mandatory retirement age.

The government states that "it is undesirable in light of the purpose of the law to set the retirement age so that the retirement age will come immediately after the unlimited-term conversion. This is exactly what happened in this case.

b. The confusion and irresponsibility of the university, which continued to employ the employee until fiscal year 2020 without any particular explanation, and then, as the end of the fiscal year approached, notified the employee that he would be retiring at the end of the academic year due to the "mandatory retirement age of 65," and then sent him a "request to work for the next fiscal year" and left him there, is serious.

c. The fact that there are many lecturers who are still working beyond the "mandatory retirement age of 65" is incompatible with the rationality of notifying them of the termination of their contracts solely on the grounds of "mandatory retirement age.

d. Therefore, the university's unilateral notice to terminate the union member's contract is equivalent to "unreasonable dismissal," and the university must withdraw this notice, continue the union member's employment based on an unlimited-term employment contract, and compensate the union member for the damage he has suffered after the new fiscal year.

The Future

Based on the purpose of the "Individual Labor-Management Dispute Resolution System," the Osaka Labor Bureau, after hearing the union member's arguments, will present its views to the university, seek the university's views, and encourage labor and management to resolve the issue through discussion.

As long as the university does not respond to the union members' demands, collective bargaining with the union awaits. At the bargaining session, which will be held with the involvement of the Osaka Labor Bureau, the university will be required to respond sincerely to the union members' claims and demands as described in section 2, without evading or cheating.

The General Union will continue to deal with this case at Shitennoji University as an important issue in the relationship between the conversion to an unlimited-term employment contract and the retirement age. We will keep you posted on any developments.


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