2025.09.02

2024(Gyo-Hi)241

Minshu Vol. 79, No. 6

(Civil Case) Judgment concerning whether there is illegality in the determination by the court of prior instance to the effect that the disciplinary action of dismissal that was given to an employee who was a member of the fire defense personnel of a local public entity on the grounds of his behavior against his subordinates is illegal, as it goes beyond the bounds of the discretionary power of the person authorized to take a disciplinary action or constitutes an abuse of such power

Case seeking the revocation of a disciplinary action of dismissal, etc. and the revocation of another disciplinary action

Judgment of the Third Petty Bench, quashed and decided by the Supreme Court

Fukuoka High Court, Judgment of January 24, 2024

Where an employee who was a member of the fire defense personnel of a local public entity was given a disciplinary action of dismissal on the grounds of his behavior against his subordinates, the determination by the court of prior instance to the effect that the disciplinary action is illegal as it goes beyond the bounds of the discretionary power of the person authorized to take a disciplinary action or constitutes an abuse of such power is illegal, due to the errors in the interpretation and application of the laws and regulations concerning the discretionary power of a person with the relevant authorization, under the circumstances (1) to (3) below found by the court. (1) At the time of behaving as mentioned above, the employee was in the position to guide the fire defense personnel as the leader of the firefighting platoon, etc. (2) The abovementioned behavior includes the following acts: [i] the employee forced one of his subordinates, who had just been hired, to do pull-ups with his body bound by a rope that was hung from the horizontal bar, and when the subordinate exhausted his strength and released the bar, the employee held the rope, suspending the subordinate in mid-air for several minutes, then ordered him to perform more pull-ups; the employee forced another subordinate to repeat training until he developed symptoms of heatstroke; and the employee had another subordinate engage in more severe training as a penalty for his collapsing due to physical exhaustion; and [ii] the employee terrified or humiliated the subordinates or denied their dignity or even insulted their family members with his utterances. (3) The employee persistently repeated the abovementioned behavior against at least ten of his subordinates many times over a long period exceeding ten years. (There is a concurring opinion.)

Article 29, paragraph (1) of the Local Public Service Act

1. The part of the judgment in prior instance that was ruled against the appellant of final appeal is quashed. 2. The part of the judgment in first instance that was ruled against the appellant of final appeal is reversed. 3. With regard to the reversed part mentioned in the preceding paragraph, all of the claims filed by the appellee of final appeal are dismissed. 4. The incidental appeal filed by the appellee of final appeal with regard to the quashed part mentioned in paragraph 1 is dismissed. 5. The total court costs shall be borne by the appellee of final appeal.

Concerning the reasons for a petition for acceptance of final appeal stated by the counsel for final appeal, ICHIMARU Nobutoshi, et al. (except for the reasons excluded) 1. In this case, the appellee of final appeal, who used to be a member of the fire defense personnel of the appellant of final appeal that is an ordinary local public entity, was given a disciplinary action of dismissal by the Fire Chief of Itoshima City, who was the person authorized to appoint the appellee as a member of the fire defense personnel, (referred to below as the "fire chief") on the grounds of the appellee's behavior against his subordinates (this disciplinary action is referred to below as the "Disciplinary Action"), and accordingly, the appellee has sued the appellant to seek the revocation of the Disciplinary Action and also seek compensation for damage under Article 1, paragraph (1) of the State Redress Act. 2. The outline of the facts legally determined by the court of prior instance is as follows. (1) Article 29, paragraph (1) of the Local Public Service Act provides that an employee may be subject to admonition, reduction in pay, suspension from duty, or dismissal as a disciplinary action if the employee falls under any of the prescribed cases, such as where the employee has violated this Act, the rules established by an organ of the local public entity based thereon, or anything similar (item (i)), or where the employee has breached the obligations in the course of duties or has neglected duties (item (ii)). The Itoshima City Rules for Prevention of Harassment (Itoshima City Directive No. 12 of 2010) define the term "power harassment" as meaning any behavior of an employee that inflicts physical pain or emotional distress on another employee or impairs the work environment based on their superiority in an official position or human relationship in the workplace and that goes beyond the scope appropriate for business (Article 2, item (ii)), and provides that employees must respect each other's human rights and must not engage in harassment (Article 5, paragraph (1)). (2) The appellee was employed as a member of fire defense personnel in April 1993, and was promoted to fire sergeant in April 2002 and then to fire lieutenant in April 2010. The appellee had served as the leader of the firefighting platoon since then, and in March 2017, held the position of the director of 'a' Division, 'b' Section of the Itoshima City Fire Defense Headquarters (referred to below as the "fire defense headquarters"). The appellee had never been given a disciplinary action except for the Disciplinary Action. (3) From around 2003 to November 2016, the appellee conducted the acts as described in the attachment (List of the Acts of the Appellee). Among the acts in the attached list, those described in 5, 6, and 9 were conducted while the appellee was giving instructions or guidance in training to his subordinates who had been in employment for less than one year (referred to below as "acts of guidance"), and those described in 1 to 4, 7, 8, 10 to 16, and 19 were the utterances that the appellee made to his subordinates (referred to below as "utterances"; these acts of guidance and utterances of the appellee may collectively be referred to below as the "Appellee's Acts"). The appellee conducted these acts primarily due to his dislike, irritation, and hatred concerning some of his subordinates, largely without emotional control, and at least ten of the appellee's subordinates were subject to these acts. (4) Around June 2016, the fire defense headquarters conducted a questionnaire survey targeting fire defense personnel regarding the improvement of the work environment, and received responses such as that power harassment was prevailing in the workplace, the work environment was the cause that made three young employees resign in a few years, and an external investigation or other measures should be taken. Around July 2016, the mayor of Itoshima City received a document prepared under the name of all those interested among the fire defense personnel. This document stated that: six young employees have resigned and three employees have been placed on administrative leave due to depression, etc. in a few years because of being subject to bullying and hazing at the fire defense headquarters; the appellee has bullied and hazed his subordinates on the pretext of training and used violent language beyond the acceptable limits; there are multiple perpetrators, and the assistant director of the 'c' Division, A, was their leader. Those people who submitted this document demanded that an investigation committee be established to investigate the actual situation because there has been no change despite their reports of these problems in response to the periodical questionnaire surveys. Having received this document, the mayor of Itoshima City took measures, including interviews with fire defense personnel, in July 2016 and thereafter. (5) On March 3, 2017, the fire chief took the Disciplinary Action against the appellee under Article 29, paragraph (1), items (i) and (ii) of the Local Public Service Act, on the grounds including the assertion that the Appellee's Acts violate Article 5, paragraph (1) of the abovementioned rules. (6) After the court of first instance handed down a judgment to grant the appellee's claim for revocation of the Disciplinary Action, 66 members of the fire defense personnel of the appellant submitted a document stating that they were opposed to the return of the appellee and A to the workplace because, if the appellee together with A, who had been dismissed by a non-disciplinary action, were reinstated, order in the workplace would be disrupted, causing impairment to the fire defense services, and there was concern about further damage being caused by their retaliation. 3. Given the facts mentioned above, the court of prior instance partially granted the appellee's claims for the revocation of the Disciplinary Action and the compensation for damage, determining as summarized below. Although the appellee's acts of guidance overstepped the scope of acts normally conducted as training, it cannot be said that the overstepping was excessive. Similarly, the appellee's utterances resulted in giving emotional distress to a fairly large number of people, but in some aspects, it can be said that the appellee merely used overly strong words or inappropriate expressions or had a foul mouth. Given that the affected employees have not suffered any serious injury, the impact of the appellee's misconduct on other employees and society cannot be found to be particularly serious. Moreover, in consideration of the facts that the appellee had never been given a disciplinary action except for the relevant Disciplinary Action and there are no circumstances suggesting that the appellee had been reprimanded individually for his guidance, etc. in training, and that the appellee has shown some signs of remorse, the Disciplinary Action selecting the dismissal, which is the most severe type of disciplinary punishment, is too severe and therefore extremely unreasonable according to the general societal consensus, and it is illegal as it goes beyond the bounds of the discretionary power of the person authorized to take a disciplinary action or constitutes an abuse of such power. 4. However, the abovementioned determination by the court of prior instance cannot be affirmed, for the following reasons. (1) A person authorized to take a disciplinary action against a public employee has discretionary power to decide whether or not a disciplinary action should be taken, and if any disciplinary action is to be taken, what type of action should be selected. A determination made by that person would be considered to be illegal if it is found to be extremely unreasonable according to the general societal consensus and to go beyond the bounds of the person's discretionary power or constitute an abuse of such power (see 1972 (Gyo-Tsu) 52, the judgment of the Third Petty Bench of the Supreme Court of December 20, 1977, Minshu Vol. 31, No. 7, at 1101; 2011 (Gyo-Tsu) 263; and 2011 (Gyo-Hi) 294, the judgment of the First Petty Bench of the Supreme Court of January 16, 2012, Saibanshu Minji No. 239, at 253, etc.). (2) Among the Appellee's Acts, the acts of guidance were conducted based on the appellee's superiority in the workplace in a manner that the appellee forced one of his subordinates, who had just been hired, to do pull-ups with his body bound by a rope that was hung from the horizontal bar, and when the subordinate exhausted his strength and released the bar, the appellee held the rope, suspending the subordinate in mid-air for several minutes, then ordered him to do more pull-ups; the appellee forced another subordinate to repeat training until he developed symptoms of heatstroke; and the appellee had another subordinate engage in more severe training as a penalty for his collapsing due to physical exhaustion. It must be said that these acts have gone far beyond the scope of instructions or guidance given in training, regardless of whether they have resulted in injuring the subordinates. Furthermore, the appellee terrified or humiliated his subordinates or denied their dignity, or even insulted their family members with his utterances. Thus, the Appellee's Acts are extremely inappropriate as behavior concerning his subordinates, and in light of the fact that these acts were repeated many times over a long period of time, they should be judged to be extremely serious misconduct. In addition, even though severe training may be necessary for fire defense personnel because of the nature of their duties, such as carrying out activities to protect people's lives and safety at the scene of a fire and other disasters, this cannot be the reason for tolerating the Appellee's Acts that have gone far beyond the scope of instructions or guidance. Given that the Appellee's Acts, including the acts of guidance, were performed largely out of his hatred for his subordinates, the situations in which the appellee conducted these acts cannot be considered to represent extenuating circumstances. What is more, the Appellee's Acts were conducted in a manner that the appellee, who was in the position to guide the fire defense personnel as the leader of the firefighting platoon, persistently repeated the abovementioned inappropriate acts of guidance and utterances against at least ten of his subordinates many times over a long period exceeding ten years, and hence, it should be said that these acts grossly damaged the work environment and extremely disrupted order and discipline in the appellant's fire defense organization. Considering that in a fire defense organization, the close communication among the staff members is important for the proper performance of their duties, such adverse impact of the Appellee's Acts cannot be overlooked. This may be apparent in the fact that an investigation was conducted as directed by the mayor of Itoshima City, who had received a document reporting the series of resignations of young employees due to the bullying and hazing by the appellee and others in the fire defense headquarters, and that a large number of employees submitted a document stating that they were opposed to the appellee's reinstatement. In light of what has been explained as above, even in consideration of the fact that the appellee had never been given a disciplinary action except for the Disciplinary Action, and that a dismissal could lead to a serious consequence of losing the status of a public employee, it cannot be said that the fire chief's decision to select a dismissal as a disciplinary action against the appellee is extremely unreasonable according to the general societal consensus, nor can it be said that this decision is illegal as it goes beyond the bounds of the discretionary power granted to the person authorized to take a disciplinary action or constitutes an abuse of such power. (3) Consequently, the determination by the court of prior instance that the Disciplinary Action is illegal as it goes beyond the bounds of the discretionary power of the person authorized to take a disciplinary action or constitutes an abuse of such power should be judged to be illegal, due to the errors in the interpretation and application of the laws and regulations concerning the discretionary power of an authorized person. 5. As explained above, the determination by the court of prior instance contains a violation of law or regulation that has clearly influenced the judgment. The counsel's arguments are well-grounded, and the part of the judgment in prior instance that was ruled against the appellant should inevitably be quashed. Given the facts mentioned above, no other grounds for illegality can be found with regard to the Disciplinary Action, and the appellee's claims are groundless. Therefore, the part of the judgment in first instance that was ruled against the appellant should be reversed, the appellee's claims regarding that reversed part should be dismissed, and the appellee's incidental appeal regarding the quashed part should be dismissed. For the reasons stated above, the Court unanimously decides as set forth in the main text of the judgment. There is a concurring opinion by Justice HAYASHI Michiharu. The concurring opinion by Justice HAYASHI Michiharu is as follows. I agree with the court opinion, but I would like to add some comments on the following points. 1. The Appellee's Acts were conducted in a manner that the appellee, based on his superiority in the workplace, repeated extremely inappropriate acts against many of his subordinates over a long period of time, and as the court opinion states, these acts grossly damaged the work environment and extremely disrupted order and discipline in the fire defense organization. This is also supported by the fact that the Appellee's Acts were conducted in the fire defense organization. Specifically, in order to enable fire defense personnel to perform their duties in a safe, secure, and swift manner at the scene of a fire or other disasters, where they put their life at risk, it may be necessary to ensure the close communication among the staff members, but, even in light of such nature of the duties of fire defense personnel, the adverse impact of the Appellee's Acts on discipline and order in the fire defense organization can be judged to be particularly significant. 2. Concerning fire defense personnel, due to the nature of their duties, severe training may be required to be provided based on the superior-subordinate relationships among the members. It can be said that, in contrast to the necessity for performing the duties, such superior-subordinate relationships entail a risk of inducing inappropriate behavior based on some staff members' superiority in the workplace. This is suggested not only by the judgment in the present case but also the precedent judgments handed down by this petty bench in other cases that addressed disciplinary actions against members of fire defense personnel as in the present case (2021 (Gyo-Hi) 164, judgment of June 14, 2022, Saibanshu Minji No. 268, at 23; and 2022 (Gyo-Hi) 7, judgment of September 13, 2022, Saibanshu Minji No. 269, at 21). In fact, it seems that respective fire defense headquarters have recognized the existence of such risk in their fire defense organizations and have implemented measures to deal with this problem. In light of the point mentioned in 1. above, it is desired that fire defense organizations implement such measures with certainty in order to ensure that their fire defense personnel can perform their duties properly. 3. In the present case, the Appellee's Acts had a particularly significant adverse impact on the appellant's fire defense organization and its work environment. This is obvious not only from the fact that these acts were conducted in an extremely inappropriate manner but also from various other circumstances such as the length of duration, the number of times, and the number of victims of these acts, and as stated in the court opinion, it is also apparent in the fact that a large number of members of the fire defense personnel were opposed to the appellee's reinstatement. Contrary to this, the determination by the court of prion instance can be understood as ruling that, in short, the dismissal of the appellee is too severe if his individual acts are evaluated one by one. It must be said that the court of prior instance should have but failed to fully evaluate what adverse impact the Appellee's Acts could have had as a whole. The court opinion indicates that the impact of the appellee's misconduct, which is a circumstance that should be or can be taken into consideration when the person authorized to take a disciplinary action exercises their discretionary power, must be evaluated based on various circumstances involved in the Appellee's Acts as mentioned above. In a case addressing the issue of the appropriateness of a disciplinary action taken against an employee on the grounds of their inappropriate behavior repeated based on their superiority in the workplace, it is necessary to properly evaluate the impact of such misconduct while fully taking into consideration various circumstances involved in the case.

Justice ISHIKANE Kimihiro Justice UGA Katsuya Justice HAYASHI Michiharu Justice WATANABE Eriko Justice HIRAKI Masahiro