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Potential of Restorative Justice for Workplace Bullying and Harassment

Hiromitsu Takihara
Assistant Professor, Faculty of Law, Chuo University
Area of Specialization: Social Jurisprudence

This work was supported by JSPS KAKENHI Grant Number 15H06618. (Public Relation Office)

Spread of workplace bullying and harassment

Workplace bullying and harassment (simply “harassment”) is one of the social issues which are rapidly gaining attention these days. For four consecutive years, bullying and harassment has topped the number of consultations for individual labour-related disputes in civil law (MHLW “FY2015 Status of Implementation for Resolution Systems of Individual Labour-related Disputes”). These conditions plainly indicate the spread of harassment.

In this article, while reflecting extremely briefly on existing debate regarding harassment, I will explore the potential of restorative justice as a new approach for harassment.[1]

Before embarking on this discussion, it is necessary to define harassment. Actually, no fixed definition exists. In this article, the term “harassment” will basically be used to refer to behavior which violates dignity in the workplace.

Special characteristics of labour relations

The basic obligations pursuant to a labour contract are the worker’s obligation to provide labour and the employer’s obligation to pay wages (Article 6 of the Labour Contract Act, Article 623 of the Civil Code). However, simply because an employer is appropriately paying wages to a worker, it does not mean that the employer is fulfilling all obligations. When considering the special characteristics of labour, other concomitant obligations arise. Although clearly-defined rules exist for the normative basis of some of these concomitant obligations, generally speaking, the normative basis is determined using fair and equitable principle (Article 3-4 of the Labour Contract Act, Article 1-2 of the Civil Code).

In the first place, when dealing with labour relations, it is necessary to consider special characteristics such as the inseparability, collectivity, and continuity of labour and character. These have the possibility to affect concomitant obligation theory as pertains to labour contracts (by way of precaution, I will add that all of these special characteristics are not always universally appropriate for labour). Furthermore, in addition to argument regarding concomitant obligations, these special characteristics are of reference when conducting deeper examination of issues which arise in labour relations. Below, I will examine these special characteristics in relation to harassment (for now, I will limit my discussion of special characteristics in labour relations for the three special characteristics listed above, and note that the above three are not all special characteristics).

First, labour and character are in an inseparable relationship. As such, there is a high possibility that some sort of damage may occur to character during the provision of labour. Harassment is recognized as one category of such damage.

Next, since labour is performed in groups and organizations, workers come into contact with colleagues and supervisors on a daily basis. Since many different characters are crowded into a single workplace, collision between characters is almost unavoidable. There is the possibility that some such collisions end in one-way attacks. This may be due to jealousy and friction which arises within the intense competition of a performance-based culture, or it may be an aspect of training. However, in many cases, such collisions should be handled as harassment.

Moreover, many labour contracts are scheduled to continue in the long-term and almost all workers expect such continuity. As such, it goes without saying that it is best to maintain smooth and favorable human relations over mid- and long-term periods with other individuals who compose the workplace to which an individual belongs.

Accordingly, when considering the first two special characteristics, harassment can be identified as one of the risks contained within labour itself. The final special characteristic indicates the essentiality of appropriate response when such risk arises.

The employer’s obligations related to harassment

The obligation to consider the workplace environment and the obligation to consider safety (Article 5 of the Labour Contract Act) can be positioned as items which reflect the special characteristics of labour relations. In the practice of lawsuits, both obligations are used as items for response to harassment. Although it is possible to identify certain trends in the utilization method for each obligation, the methods are also viewed as somewhat intermixed. Theoretically speaking, a more appropriate item is the obligation to consider the workplace environment as argued around 1990 in regards to sexual harassment.

In any case, a certain obligation related to harassment arises for employers. Initially, as regards the context of sexual harassment, it was recommended to take corrective actions such as 1) ensuring sufficient education of employees, 2) questioning parties involved in the event that sexual harassment actually occurs and stopping the problematic behavior immediately, and 3) transferring the perpetrator if necessary[2]Furthermore, so-called sexual harassment guidelines[3] which are not normally considered as possessing validity in private law call for response such as 1) clarification, dissemination, and awareness-raising of guidelines, 2) system development necessary for appropriate response to consultation, and 3) swift and appropriate response after sexual harassment occurs. Such arguments are viewed as appropriate for specific obligations as pertains to general harassment.

However, when examining actual cases such as the case of Kawasaki City Waterworks Bureau (June 27, 2002; Kawasaki Branch of the Yokohama District Court) and the case of the Director of the National/Kyoto Prefectural Labour Standards Inspection Office (Fujitsu) (June 23, 2010; Osaka District Court), there are many cases in which severe results occurred due to failure to implement appropriate measures toward harassment. Furthermore, as regards the relationship with training which would become a problem viewed as so-called power harassment, it is necessary to enhance education at employers’ level for individuals responsible for conducting training. Moreover, when referring to cases such as the case of Arkray (October 9, 2013; Osaka High Court), it is clear that individuals conducting training must pay sufficient attention to selection of language used in training, the extent of communication, and whether or not the comprehension and true intentions of the individual undergoing training has been appropriately conveyed.

Background/causes of harassment and limitations of individual remedy

 The necessity of appropriate response to harassment and the implementation of appropriate training is self-evident. However, there are few cases in which such actions are actually taken. The reason for this becomes somewhat clear when understanding the background and causes of harassment[4]. In many cases, items indicated as background factors and causes of harassment are excessive labour and stress caused by personnel reduction and insufficient staff, as well as a lack of workplace communication which is caused by such excessive labour and stress. In stressful workplaces, all employees are forced to focus exclusively on their own work. In some cases, this manifests as strong reprimands of subordinates, or as jealousy/friction between colleagues. Middle managers are placed in a difficult position by executives (there is the possibility that perpetrators are also victims[5]) and have no time in which to conduct appropriate and detailed training. Even in terms of providing care after the harassment has occurred, the perpetrator has no time to spare or emotional leeway. The victim of the attack is overwhelmed with daily work to the point of being unable to make time to consult with family members, friends, and other close acquaintances. If managers are extremely busy, they are unable to monitor conditions in the entire workplace. It is unreasonable to expect appropriate communication in workplaces that are packed with people who must work as hard as possible simply in order to fulfill their own responsibilities. The estimated rate of unionization for labour unions is also decreasing and fell to 17.4% in 2015 (MHLW “FY2015 Basic Survey on Labour Union”). As a result, harassment which occurs is not even viewed as a problem. Or, assuming that the attacks are viewed as a problem, the time and ability to implement solutions does not exist.

Moreover, another factor related to this line of argument is how remedy for harassment tends to be for individual cases. As pertains to problems which are not the point in dispute (issues faced by the workplace or organization itself, cases in which the perpetrator is also a victim, etc.), it is unreasonable to expect forward-looking discussion to be held after the incident of harassment. As such, it is necessary to consider issues faced by the workplace as a group (community). This will bring about a change in consciousness among employers. Furthermore, if it is possible to obtain dynamic involvement from the individual workers who are constituents of the workplace, it will promote the recovery and reconstruction of the workplace environment, and will serve as an opportunity for autonomous formation of preventive measures and measure to prevent reoccurrence.

Potential of restorative justice

Restorative justice[6] is a certain way of looking at things, which appears to be appropriate for the conditions described above. Restorative justice seeks to encourage dialogue through mutual cooperation, to promote restoration of damages, and to create new value. Specifically, in many cases, restorative justice is implemented as a direct dialogue model which includes the three parties of victim, perpetrator, and community. This is a conflict resolution method which was used by people in traditional societies which moved from place to place in order to hunt animals and gather food while still maintaining a fixed community. It is also a concept of the Truth and Reconciliation Commission which was formed after Apartheid in South African Republic. Restorative justice is used as a method of responding to bullying at schools. It is also used as a method of responding to harassment in nations such as Canada.[7]

Restorative justice can be described as a method which considers why harm occurred, gives priority to communication within the process of repairing deteriorated relationships and constructing new relationships, and attempts to create positive value for the future while clarifying needs, responsibility, and expectations. One point which is frequently misunderstood is that restorative justice does not simply repair deteriorated relationships. Instead, when assuming that a problem has occurred with existing relationships, restorative justice attempts to construct new relations while creating new value. Accordingly, the idea of reconstructing problematic conditions does not match the philosophy of restorative justice. Furthermore, in cases of severe harm, there are instances of restorative justice in which the perpetrator and victim go in separate directions (each party obtains separate new relationships) without engaging in direct dialogue.

Among the special characteristics of labour relations discussed above, collectivity and continuity are prerequisites for restorative justice, and have affinity for assumed value. The reason for this is that restorative justice assumes the existence of a community and views the workplace itself as a single community. Moreover, restorative justice with interest in the continued existence of human relations in regional community can include the value of continuing smooth and favorable human relations necessary for mid- and long-term labour for certain employers. Furthermore, as pertains to the relationship with the background and causes of harassment, restorative justice brings problem-solving capability to the workplace, promotes communication, and contributes to the observation of harm caused by factors such as excessive labour and stress. In addition to providing care for the victim, it is necessary to consider issues which are faced by the workplace or organization itself when examining why the harm in question occurred. Consideration must also be given to the possibility that the perpetrator is actually a victim. During this process, it is also necessary to search for the appropriate form of response and training.

The implementation of restorative justice in labour relations creates opportunities to enrich the obligations of employers who oversee and manage the workplace, brings innovative value to the workplace, or increases value. As a measure for creating certain types of obligations and responsibilities in employers (whether these obligations and responsibilities are sublimated to the dimension of legal obligation and legal responsibility is another question), restorative justice also functions as a measure for creating new value.

Future themes

When discussing restorative justice with a focus on labour relations, particularly on harassment, rather than theoretical legal issues such as legal positioning and normative bases, there is much recognition for systematic design issues such as the cultivation of facilitators for actual implementation, as well as discernment of participants and leaders. However, based on review conducted up until this point, there is almost no doubt that harassment requires consideration of the workplace and organization as collectives, in addition to just providing individual remedy. Assuming that restorative justice is an effective means of addressing such issues, I will work my hardest to find solutions.

Reference Literature
  1. ^I prepared this article as one of these “Education Course” on Chuo Online by making significant changes to the manuscript of a report which I gave at a mini-symposium entitled “A New Approach to the Problem of Workplace Harassment” during the 131st Conference of the Japan Labour Law Association. Said conference was held on May 29, 2016 at Doshisha University. The report manuscript is scheduled to be published in Volume 128 of the Japan Labour Law Association Journal.
  2. ^Shozo Yamada, “Jurisprudence of Sexual Harassment: Fukuoka District Court 1989 (wa) — Report on Damage Claim No. 1872,” Rodohoritsu Junpo, Vol. 1291, pp. 30 & 39 (1992)
  3. ^“Guidelines Concerning Measures to be Taken by Employers in terms of Employment Management with Regard to Problems Caused by Sexual Harassment in the Workplace,” (2006, Labour Bulletin No. 615)
  4. ^Detailed information and plentiful reference literature regarding this matter is given in Shino Naito “Roundtable Discussion on the Problem of Workplace Bullying and Harassment: Recommendations and Future Legal Policy Issues — Based on Survey Results of Labour-Management Hearings,” Quarterly Labour Law, Vol. 238, p. 2 (2012).
  5. ^Satoshi Nishitani, Decent Work as Human Rights — Fulfilling Work Worthy of Human Beings, (2011, Junposha), p. 271.
  6. ^Regarding restorative justice, I referred to works including Howard Zehr, The Little Book of Restorative Justice, (Good Books, 2002), Norio Takahashi, Exploration of Restorative Law, (Seibundoh, 2003), Norio Takahashi, Resolving Crime Through Dialog — The Growth of Restorative Law, (Seibundoh, 2007), Akihiro Shukuya & An Sonfun, Introduction to Restorative Justice, (Seibundoh, 2010), and Eizaburo Yamashita, Restorative Approach and Social Work — Suggestions for Constructing Harmonious Relationships, (Akashi Shoten, 2012).
  7. ^Susan J. Coldwell, “Addressing Workplace Bullying and Harassment in Canada, Research, Legislation, and Stakeholder Overview — Profiling a Union Program,” JILPT Report, Vol.12, p. 135.
Hiromitsu Takihara
Assistant Professor, Faculty of Law, Chuo University
Area of Specialization: Social Jurisprudence
Hiromitsu Takihara was born in 1981. He graduated from Keika Gakuen in 2000 and the Waseda University School of Law in 2004. He completed the Professional Degree Program in the Chuo Law School in 2008. He acquired the title of Juris Doctor (Professional Degree) from Chuo University. Currently, he serves as Assistant Professor in the Chuo University Faculty of Law. His main theses include “Considering Protective Laws and Surrounding Trends Regarding Workplace Bullying in the United Kingdom — Protecting Dignity in the Workplace,” Japan Labour Law Association Journal, Vol. 122, p. 121 (2013), “Employer’s Duty to Prevent and Deal with Employee’s Psychiatric Injury in the Workplace,” Chuo Law Review, Vol. 121, Issues 7/8, p. 473 (2014), and “Duty of Care and Mutual Trust and confidence in Employment Relations in Common Law — Handling of Workplace Bullying and Harassment Referencing Psychological Contract Theory,” Quarterly Labour Law, Vol. 250, p. 189 (2015).