BY HIFUMI OKUNUKI
NOV 26, 2014
The prevalence of the employment custom of saiyō naitei (tentative job offers) may well be peculiar to Japan. As I touched upon in my March 27, 2012, column, university juniors and seniors skip class to attend work seminars, company orientations, internships and, finally, a series of tests and interviews with prospective employers.
Universities wholeheartedly approve of this shūkatsu job-hunting mania and are therefore quite lenient about attendance, assignments and other mere scholastic responsibilities. If things go well, seniors find themselves the lucky recipients of a saiyō naitei — an early promise of employment to begin the first April after graduation.
But what does the law say about students who receive this saiyō naitei promise of employment only to have it canceled before the job actually begins? It’s not technically a dismissal but rather a naitei torikeshi — a canceling of the job promise. The Supreme Court on July 20, 1979, recognized naitei as a binding contract that could be canceled only if the employer’s situation had changed and there was rational, objective and sufficient reason for the decision based on social norms. Japan’s highest court ruled against Dai Nippon Printing, making clear that naitei was not something that could be canceled easily.
Currently, a case of naitei torikeshi has the media abuzz. Rina Sasazaki — at the time a junior at Toyo Eiwa University — was promised in September 2013 a position as news announcer with Nippon Television Network (NTV) beginning April 2015. The TV station later learned, however, that she had helped put herself through college working as a “hostess” in a Ginza nightclub run by her mother’s acquaintance.
In Japan, working as a hostess is a mizushōbai job. Mizushōbai literally means the “water trade” but refers to the industry that revolves around liquor, and is seen by some to be society’s seedy underbelly. NTV believed her past employment as a hostess could tarnish the reputation of the station, and so it just wouldn’t do to have her as a news announcer.
In March, more than a year before her scheduled start in April 2015, she informed NTV personnel that she had previously worked as a hostess, and in April the head of personnel informed her that they were “asking” her to withdraw from the naitei.
Sasazaki refused the request and asked for a reason for the cancelation. The broadcaster claimed that she had lied on her application by not revealing the part-time work.
The company said: “Being a news announcer requires extremely high moral rectitude. Your past work as a nightclub hostess falls short of such a requirement and, if discovered by the public, would make it near-impossible for you to continue working as an announcer.” Management then sent her an official naitei torikeshi.
Sasazaki turned around and sued in Tokyo District Court to force NTV to hire her as originally promised. Initial oral arguments took place Nov. 14.
The attorney for the plaintiff notes: “All she wants is to become an announcer at the company next April. I believe NTV’s assertions are mistaken, but we are not in an adversarial relationship. We just want them to correct the mistake.” The lawyer added that they hope the court case will proceed quickly (the next hearing date is Jan. 15).
If the court rules the naitei torikeshi invalid, her position as an employee will be confirmed. She will also be eligible for compensation for an invalid cancelation of the promise of employment.
So let’s get our heads around the points of contention in this case. NTV claims two grounds for the cancelation:
1) Sasazaki’s work history as a nightclub hostess conflicts with the high “moral rectitude” required of a news announcer, and
2) Her failure to report this job constitutes a fraudulent application.
Are these proper grounds for naitei torikeshi? It is true that Japanese TV broadcasters tend to treat female news announcers half like news announcers and half like celebrities — so much so that they are often called ana-tare, a portmanteau of anaunsā (news announcer) and tarento (celebrity). One announcer was pressured out after a past private photo of her cozying up to a lover was leaked. NTV apparently wanted to do a full checkup on Sakazaki before hiring her to avoiding finding out later. But is past work at a nightclub incompatible with presenting the news on TV?
As the Supreme Court verdict in the Dai Nippon Printing case ruled, the first condition for a legitimate naitei torikeshi is that the employer discovers something unknown at the time the initial naitei was made. The new information must also be sufficiently serious based on rational, objective social norms. Examples would be if the student failed to graduate as planned or if they had fraudulently represented something work-related. Abstract or irrational grounds do not suffice, according to the court. Dai Nippon Printing discovered that the worker “seemed gloomy,” and the court ruled this reason insufficient to cancel a promise of employment.
NTV claims Sasazaki’s “past work as a nightclub hostess falls short” of the “moral rectitude” required to be a new announcer. The broadcaster believes such a “shady” past would surely get out (it has now), causing a scandal, and apparently wanted to nip the problem in the bud. In fact, past private photos of many female announcers are often leaked over the Internet.
The plaintiff had received the naitei in September 2013 and by March 2014 had already undergone training for her position, so it is obvious that she had every reason to believe she would work as a news announcer at NTV. It seems unacceptable for someone who had already undergone training to then have her hopes of a news-announcing career dashed just because she had worked part-time as a nightclub hostess, which has no conceivable connection to her prospective job.
The job of “female news announcer” (unfortunately, the job title itself has an inherent gender bias) in Japan has already been twisted beyond recognition. First of all, at the start of their careers, they rarely actually read the news. Rather, they host singing and cooking shows, variety and comedy programs. They play the role of ijirare-yaku, a celebrity who is teased relentlessly by veteran TV personalities in a more or less affectionate manner. The past of celebrities in Japan is routinely probed and exposed in the mass media. How will Japan’s odd mutation of the job of news announcer impact the court’s decision?
On point 2, NTV claims she lied on the “self-introduction page”presented to her at a seminar conducted in September 2013 by not including the nightclub work. However, she was not instructed to include all part-time work she had ever done, so it’s hard to see this omission as a serious case of fraud.
The plaintiff herself says: “I feel terrible that it has come to litigation. But becoming a news announcer is my dream. I just cannot give up on my dream for this kind of reason. I also think this court case will provide a chance for everyone to think about the job of female news announcer. Can someone who worked as a hostess during college not become a female news announcer? My work past will become public due to this court case. If I become an announcer, I plan to accept my past, including any criticism.”
Sazazaki showed courage by disclosing her name and fighting openly. As my readers know from last month’s article on our maternity harassment victory, plaintiffs often choose to remain anonymous. My hope is that come next spring, Rina Sasazaki will be working as a news announcer at NTV.
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 email@example.com. On the fourth Thursday of each month, Hifumi looks at cases in Japan’s legal history to illustrate important principles in labor law.
Originally published in the Japan Times.