SNA (Tokyo) — Kata-tataki, or taps on the shoulder, indicate a series of actions a boss takes to drive a worker to quit without outright firing them. It establishes that the subsequent contract termination is mutually agreed, as opposed to a unilateral and contestable firing. The legal jargon for such “shoulder tapping” is taishoku kansho. In this installment of Bread & Roses, I’d like to explain the practice and introduce a recent, surprising verdict in a court case over its validity.

If it succeeds, the pressure campaign gets the employee to sign her own resignation, thereby releasing the employer from any liability or responsibility to fulfill the contract and pay wages. What should workers do when the company starts tapping them on the shoulder?

It’s not illegal per se for an employer to engage in taishoku kansho, but resignations induced by false information, threats, force, harassment, or discriminatory intent are deemed invalid. Since workers are free to accept or refuse the resignation request, employers commonly offer a top-up to severance payments or some other inducement.

Article 16 of the Labor Contract Act introduces the principle of abusing the right to dismiss, and it allows firing only if there exists fair, reasonable grounds based on social norms.

There are several types of dismissal allowed under the law, including downsizing for economic reasons (seiri kaiko). But four tough conditions must be met before a downsizing dismissal can be considered legitimate: 1) dire finances; 2) efforts to avoid layoffs; 3) proper explanation to workers and unions; and 4) rational choices on who gets the axe.

This legal restraint on firing people is why employers often tap workers on the shoulder, even when they have a clean work record. Countless employers drive workers out with such tactics, persuading them through direct and indirect means that they have no choice but to accept resigning. Countless employees face social and peer pressure to agree, feeling regret and vexation only after signing their own termination. Unless they can prove threat or force, once they sign those agreements with employers, the courts will deem it to be an amicable separation.

Workers need to understand that they are perfectly free to refuse such requests and stay employed on their current contracts. They cannot be compelled to sign on the dotted line. Workers who don’t want to resign should refuse outright.

Last November, the Osaka District Court ruled against the healthcare corporation Ichieikai (which runs two dental clinics in the Sumiyoshi and Namba districts of Osaka). The company tricked a dentist on a fixed-term contract to resign by duping him into believing that the clinic where he worked was to be closed.

The plaintiff oversaw outpatient care at the Sumiyoshi clinic. He received an “end-of-contract” notice from the defendant, with the explanation that his clinic was closing due to staff shortages and poor earnings. He signed the attached resignation agreement document. After learning that there had, in fact, been no plan to close the clinic, the plaintiff argued that the resignation agreement was based on fraud. He asked the court to invalidate his agreement, which the court did.

Let’s follow some snippets from the actual verdict and, as you read, remember that this guy–the plaintiff–is a dentist.

It’s fair to say that the defendant had explained that the clinic would be shuttered. The defendant claims that continuation of the clinic had become nearly impossible in light of an unending string of complaints about the plaintiff’s power and sexual harassment against dental hygienists and others; about his body odor, lack of professionalism, and problematic behavior towards patients; and his complete failure to correct his behavior despite coaching and warnings. In addition, there was an earnings slump caused by this behavior.

The defendant also listed the following eleven problematic behaviors gleaned from interviews with employees:

1. He prepared for his second job while on duty at the clinic.
2. He viewed porn websites on the clinic PC and refused to stop after being warned, because he was “not a minor.”
3. He threatened to kill an insurance agent over the phone.
4. He would leave the workplace while on duty to go to convenience stores and ATMs.
5. He would fall asleep at work during procedures.
6. He explained very little about procedures to patients, causing distrust.
7. He refused orders to bathe despite his extreme body odor.
8. He would mix his private belongings in with clinic supplies and equipment, failing to tidy up even after being warned.
9. When warned about repeated mistakes, he would raise his voice and grab the person’s right wrist in an intimidating manner.
10. He would say outrageous or taboo things to patients.
11. He drove a part-time dentist to quit because he didn’t like the dentist’s attitude then asked the clinic to find a new one.

Incidentally, the plaintiff largely admits to the above behaviors. Osaka District Court acknowledged that the actions were inappropriate in terms of relationships with co-workers and patients, determining that the defendant likely felt that the plaintiff’s relationship with the staff had gotten so bad that they made up the story about closing the Sumiyoshi clinic as a device to find a smooth way forward and to end the relationship amicably.

The court concluded:

The defendant had no intention to close the whole clinic, but explained to the plaintiff that they would close the whole clinic. The plaintiff believed the story and agreed to resign. Since the resignation agreement was based on the largely false understanding that the whole clinic would be closed, it must be said that the agreement had a defect (error or deception) in terms of expression of intent.

One fascinating aspect of this case is that the court uses the employer’s badmouthing of the dentist to establish the motive for the clinic’s false narrative. It is ordinarily quite tough for a plaintiff to prove that a defendant had a strong enough motive to lie or deceive the other party, and invalidating agreements based on deception is an extremely difficult task.

The employer’s listing of the plaintiff’s many problems would convince just about anybody what an… umm, unpleasant person… this dentist is. Yet in this case, it helped convince the court that the clinic had lied.

We must remember that this case is not the standard one revolving around the legitimacy of a dismissal. The defendant’s efforts to paint the dentist in the worst possible light were all for naught, and even backfired in that they helped establish motive for the employer’s lies.

The basic thinking of the court is… It’s hard to believe that a clinic would refrain from a bit of fibbing in order to get rid of this dude.

The clinic would have been better off to just outright fire the guy

But for our purposes here, the main point is that the case establishes workers’ rights to refuse employers’ taps on the shoulder: taishoku kansho has no legal force.

But once a worker agrees to go, it can be a very steep uphill climb to try to prove that the departure was involuntary.

If this should ever happen to you–your boss comes and taps you on the shoulder, you can simply respond: “No thank you. I’m not currently experiencing any shoulder tension.”

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