元中学教諭「指導力不足」で免職は違法 岡山地裁（asahi.com 2009年1月27日20時36分）
判決は、元教諭の授業中に立ち歩く生徒がいたり、試験問題を適切に作成できなかったりした点については「教員としての適格性を疑わせるに十分」と指摘。その一方で「公務員の地位を失うという重大な結果をもたらす処分については、教員としての適格性を欠くというだけでは足りない」とし、「学校職員など別の職への採用の可否は検討されておらず、地方公務員としての適格性を厳密に検討していない」と判断した。
私は、教師は教育のプロだと思っていましたし、プロとして採用されたと考えていましたので、この判決は、個人的には釈然としない判決です。
裁判官として採用した人間が、裁判官としての能力がないことがはっきりしたとしても公務員としての適格性がないと言えなければ、裁判所事務官としての採用を検討しなければならない、という理屈になるのでしょうか？
という疑問が浮かんだりします。
しかし、この分野では不勉強な私よりはるかに優れたコメンテイターがおられますので、ご意見をお聞きしたいと思って紹介しました。
ところで、
記者会見した元教諭は「教育方法に直す点はあると思うが、もう一度授業を通じて理科の楽しさを教えたい」と話した。
この元教諭は、少なくともKYであることは間違いなさそうです。
とはいうものの、今の教師は「武器」を持っていませんから。
皆でつるんで授業中騒げば気に食わない教師をクビにできる、ということになると、まあ何が起きるかは考えてみるまでもないでしょう。
生徒から尊敬される、ということを教師に求めることは、非現実的なたわごとである、ということなんでしょうか？
そうかも知れませんね。
教師も自らの権威を放棄し、親も教師の権威を認めないんじゃ、あとは好き嫌いだけですかね。
もちろん尊敬されることが望ましいのですが、「*全ての*生徒／児童に尊敬されないからクビ」というロジックを組むのは危険だと思っています。この辺、医療問題にちょっと通底しますね。
でもねぇ、教育公務員特例法が適用される公立中学校教諭は、そもそも地方公務員法の「一般職」とはされないのでは？
元々が「教員」として採用された者が不適格であった者を、「一般職」に転換することが地公法の上で適法なのであろうか？
また地方公務員であっても、解雇法理に関しては労働基準法が適用となる。で、ここからは私も職業上専門としている労働基準法での解雇法理の解説をしてみようと思う。
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労基法における解雇権濫用法理では、客観的に合理的な理由が無い場合は解雇権の濫用にあたり、当該解雇は無効とされる。では、この解雇の「客観的に合理的な理由」については、過去の膨大な判例から次の４つに分類されるのが一般的である。
・ユニオン・ショップ協定に基づく解雇
・経営上の必要性による整理解雇で、整理解雇の４要件を満たすもの
・労働者の規律違反（懲戒事由のある普通解雇も含む）
・労働者の労務提供の不能や労働能力または適格性の欠如・喪失
今回の分限免職は、この４番目の「能力または適格性の欠如」による解雇に相当する。このタイプの解雇を有効とした判例としては、プラウドフットジャパン事件（東京地判平12.4.26，労判789号21頁）や、日水コン事件（東京地判平15.12.22，労判871号91頁）などがある。いずれも菅野和夫著「労働法」では次のように述べられている。
岡山県教育委員会は、この教師を指導力不足として１年間の研修を行っており、前記引用における「向上の機会を与えた」と言えるのではなかろうか。一般的に解雇にあたっては、客観的に合理的な理由、社会通念上相当であること、解雇回避努力義務、そして手続の妥当性が問われるが、こうした労働者の職務能力や業績不良を理由とする解雇にいては、研修などで向上の機会を与えることは、使用者側が解雇回避義務を尽くしたものとされるのが従前の判例の大勢である。
しかるに本判決では、こうした向上の機会付与では不十分であり、配置転換等のより一層の解雇回避義務を尽くせとしている。しかしながらこの配置転換による解雇回避義務は、労働者の責任領域に属なさい理由（職務能力や業績不良は労働者の責任領域である）に拠らない、使用者側の理由（経営危機での人員整理など）による解雇に適用される回避努力義務であるとしてほぼ判例は確立している。
この点で本判決は解雇理由の責任流域と解雇回避義務の解釈が、明らかに労働者側に偏って有利に解釈されており、使用者側の解雇権を著しく制限する判決であって、大いに問題があると言わざるを得ない。
そもそも解雇に至る手続に瑕疵が認められない上に、判決でも「教師として適格性を欠いた」と認めているのであれば、解雇（分限免職）を無効とすることは判例に照らして理解に苦しむ判決である。
当然教育委員会側が控訴するであろうが、高裁での判決を注目せざるを得ない。
>No.4 法務業の末席 様
教育公務員特例法は地方公務員法に対して特別法であると理解して間違いないだろうと思います。
とは申しながら、教師は「地方公務員法上の一般職」に包含されます。
職に就くために専門資格を有することが必要な専門職なのは間違いなく、それを前提に特別法が用意されているのも事実なのですけれど。
それでも、分限・免職などは特例規定の無い場合は、地方公務員法が適用されます。
で、今回の事案については、特例法ではなく、地方公務員法との関係に於いてどうなのか？が主たる論点になるし、実際にそうなったと考えています。
（地方公務員法第３条、地方教育行政の組織及び運営に関する法律第３５条、間接的には教育公務員特例法第１条）
そこで、地方公務員法の分限規定、特例法の関連規定、及び教育行政組織法令の構造に鑑みると、論旨の全否定は難しいと思います。
ただ、過保護では？という受け止め方そのものについては、感情論としては反対意見を申し述べがたいです。（要するに判決に対して若干懐疑的に思わなくもないです。
なお、朝日新聞によると、教育委員会側は控訴の方針を表明しているようです。
＞No.5 thx-1138 さま
地公法は普段守備範囲とはしないので、ご教示は有り難いです。さて、私の前投稿№4で紹介した日水コン事件（東京地判平15.12.22）ですが、別冊法学セミナーの「基本法コンメンタール労働基準法」（金子征史・西谷敏・編）の102頁にも下記の通り記述されていました。
判決で言及されている「使用者による指導・教育や能力開発」というのが、労働者側の能力や勤務成績の不足を理由とする解雇権濫用を判断する際での「解雇回避努力義務を尽くしたか否か」判例基準であって、配置転換の可能性まで検討しなければならないとした判例は見たことがありません。
なお前記コンメンタールでは、解雇回避努力義務の法理としてドイツ労働法での比例原則について解説言及し、さらに具体的には下記の解説が為されています。
すなわち解雇と解雇回避義務での利益と不利益が比較衡量されるべきとする考え方が労働法解釈の大勢であり、日本の裁判例では普遍的と言えましょう。そしてこのような労使の適正な利益調整の可能性の確保という面で、今回の岡山地裁判決はバランスを欠いており、労働者側の利益を過度に重視した判決の印象があります。
教育委員会側は控訴の方針を表明しているとのことですが、使用者側としての控訴判断の当否より、労働法令での解雇権濫用法理の判例の不統一という観点から、当然の控訴かと思います。
> No.6 法務業の末席 様
私も、ご指摘のご主旨には全くもって、賛成です。
そうして、法律解釈の観点から上級審の判断を知りたいと思います。
正反対の法律解釈が確定判決として残ると、実務家として爾後の類例に対して、判断に苦しむという側面があるかと存じますので。
---- 以下は、エントリの裁判官と裁判所事務官との件についての雑感です。（名宛人の特定無しです。）
裁判所職員（＝司法権に属する職員）は、（主として行政権に属する一般職について定めた）国家公務員法の適用を受けない特別職の公務員です。
しかし、裁判所職員臨時措置法の規定により、裁判官・裁判官秘書官以外の裁判所職員については、特別法無き場合は国家公務員法等の規定が準用されます。
※内閣・人事院の権能は全て最高裁判所の権能と読み替えられます。
従って、裁判所職員臨時措置法の適用を受ける裁判所の事務官などは、分限免職等について国家公務員法の規定が準用のうえで、適用されます。
一方、裁判官の罷免については、裁判官分限法や裁判官弾劾法に由来するなど、事務官などに比して、根拠法令や手続き面に於いて格段の差が存在するように見受けられます。
この点に於いて、互いに一般職であり同じ法律が適用される事務吏員と教員との関係、異なる法律の適用を受ける特別な特別職？である裁判官と一般職類似の特別職？である裁判所の事務官との関係、これらを同じ土俵で比較して良いものかどうか？
個人的には疑義が生じる点であり、裁判所職員に対する同種事案について確定判決の事例があれば（生じれば）、是非知りたいです。ポリポリ。
> No.7 thx-1138 への補足
そう言えば、現行法の下では事務吏員とか技術吏員とか分けずに、単に「職員」と呼称するように法改正されたんでしたっけ。。。。
No.6 投稿の労基法コンメンタールからの引用部分にミスあり、訂正
黒太字部分、引用追加＆訂正
先刻、地方公務員法関連の書籍などで、任免・分限・身分保障等に関する確定判決の先例や実務の例などを、私の能力で可能な範囲で調べてみました。
結果としては、さすがに本件事案のような実例や判決の先例は掲載されていなかったです。予想通りです。。。（汗；
ただ、過去の確定判決の先例において、「公務労働者を論じるに於いて、労基法（及び判例）或いは労働三法（及び判例）から逸脱していても、広義の公務員法（及び判例）が優越して適用され、広義の公務員法（及び判例）に照らして妥当であれば適法な不利益処分である。」とする主旨の事例がそれなりに掲載されてました。
とは言いながら、掲載の実例は地方公務員に限らず、国家公務員、旧公企体職員、地方公営企業職員、教職員等を含んでました。一応地方公務員法の本だったのですが。（うむぅ？
本件についても、労働法（及び判例）より、公務員法（及び判例）に即して考える方が妥当するかも知れません。というような事を思ったりもいたしました。ﾍﾟｺﾘ;
謹慎中ですが、情報提供ということですんません。
エントリーの内容等を見てますと誤解もあるようなので・・。
私の知る範囲でご報告を。
まず、裁判官と教員との違いにつきましては、最大の点は人事上の流れにあります。
裁判官で、人事異動で裁判所の事務官に異動される方は私の知る範囲ではないのではないかと思いますが、私の知る都道府県教委では、教員が教育委員会事務局の各課の職員として異動で行くことは良くあることだと思います。（岡山がどうかは分かりませんが・・・）
教育委員会事務局には、もちろん行政職の職員もいるのですが、相当数の割合で教員枠もあります。（私の知る数府県の教育委員会だけですが）
もちろん、教員出身ならではの各学校への相談・指導業務もある訳ですが、普通に行政職と変わらない事務を担当する教員出身職員も結構いるはずです。
で、そういった職で求められるのは、教職現場の児童・生徒への指導能力ではなく、行政事務の執行能力であったりする訳です。
各学校とそうした教育委員会事務局とを行ったり来たりする職員もいますし、ずっと教育委員会事務局に行ったままの職員もそれなりにいると思われます。
多分、今回の判決も、日水コンのように民間企業のＳＥではなく、そうした都道府県教育委員会の人事の事情を踏まえての判決ではないかと思うのですが・・・。教員として能力のない者が行政として使いものになるかどうかは分かりませんので、あくまで一般論ですが。
すみませんm(_ _)m
米がダブってしまいました。
№11は削ってください。
> No.13 じじい 様
教育委員会事務局内の指導主事（であってましたっけ？）様方がその一例ですよね。教員の資格を有する事務局職員・教育行政事務を担当する教員としての有資格者。
えっと、年齢を考慮すると、確かにそういう形での配置転換はあり得るかも。
完全に盲点でした。情報提供ありがとうございました。(._.) φ メモメモ
恥ずかしながら、学校の事務職員しか連想出来てませんでした。深謝御礼申し上げます。m(__)m
＞教育委員会事務局内の指導主事（であってましたっけ？）様方がその一例ですよね。
仰るとおりです。
指導主事だの、主任指導主事だの、首席指導主事だのといった役職はありましたが（＾＾)
社会保険労務士の立場ではなく、一介の納税者の立場でコメント。
能力不足の教員を、一般公務員より高い教員の俸給を全額（公金から支出＝税金が財源）支給し、１年間指導力向上の研修を使用者側の費用負担（公金から支出＝税金が財源）実施し、あまつさえ教師の職務に不適格であっても更に他の職務に配属替え（配置換えの費用負担は使用者負担＝公金から支出＝税金が財源）出来ないか等、更なる解雇回避義務を尽くせと岡山地裁は判決する。
使用者（自治体）の背後にいる納税者の一員として、ここまで公費＝税金から負担して能力の劣る労働者の雇用を維持しなければならないのだろうか？ 解雇回避による労働者の利益は、１年間で１千万円を超える公費の無駄な支出より、重視しなければならないものなのだろうか？ 使用者側のコストを負担する納税者の不利益と比較衡量された上で、なおかつ労働者の利益を重視すると裁判所は判断したことになる。裁判所は公平な審理を行ったのであろうが･･･
しかぁ～～し、納税者として納得できない！
無能な教員の解雇回避に費消される公費（税金）という不利益を、この裁判官はどのように見積もったのか？
非常に疑問であり、大いに不満である！
解雇と解雇回避義務での利益と不利益が比較衡量の上で判断されるという、比例原則に拠る判決とは到底思えない。上級審での原審破棄が為されるべきだ！
以上は平成20年度の所得税申告納付の為に、先日来「会計王」の帳簿入力にヒイコラ言っている、一個人事業主の「心の叫び」である。
法務業の末席様
お苛立ちは凄く良く理解できますし、私もご見解に近い感想を持ってはいます。
教師と同世代が故、思いっきり善解しようとすれば、下記の引用部
＞元教諭は８１年に採用され、岡山市内の中学校で約２４年間、理科教諭として勤務。
＞
この24年間の理科教師としての実績（良くも悪くも)、ここら辺を裁判長は考慮している、と考えられないでしょうか、この実績を教育委員会側が、しっかりした証拠、根拠などを示し、突き崩すことが出来ていたならば、（例えば、担当下に於ける生徒たちの理科の成績が24年間著しく低かったとか、不良生徒の発生が著しく高かったとか・・）結果は逆だったのではないかな～と、ふと思ったりしてます。
しかし、別の見方をすれば、24年間の悪い実績の積み上げで（且つ、研修期間というお情けも与えているし）教育委員会も堪忍できなくなったとも考えられるんですが・・。
法務業の末席様
＞しかぁ～～し、納税者として納得できない！
無能な教員の解雇回避に費消される公費（税金）という不利益を、この裁判官はどのように見積もったのか？
私は別に本件の能力の劣る教員を庇う積りは全然無くて、判決の意図するところの理解（判決に賛同しろと言う意味では一切ありません）に資するかも知れない、多分、誤解されているであろう都道府県教育委員会における教員人事の実態のごく一部をご説明しただけなのですが・・・。
法務業の末席様の納税者としての怒りは十分理解できますので、これ以上推す積りもないです（＾＾；
ということで、謹慎に戻らせていただきますm(_ _)m
じじいさま
貴方様の№11コメントへの返信機能を使ったのは、私のコメントに繋げる為の適当な一般論として、話しのマクラ代わりだったのですが･･･。
じじいさまのご主張を論破しようとか、№11コメントに怒りを感じたとかではございません。安易返信機能を使い皆様に誤解を招いたのは私の責任であり、私の方がじじいさまに謝らなければなりません。m(_ _)m
＞謹慎に戻らせていただきます
この最後の１行は、撤回をご検討頂きたく存じます。
法律と証拠によって判断される民事訴訟の仕組み・枠組みを考えると、裁判所の判断としては（職責の行使という意味で）真っ当かなと思ったり。
この結果については、被告側の立証の稚拙さの問題も否定できない要素だろうと思いますし。
原告については、面識もないので迂闊な事は言えないけれど、良い印象は抱きがたく、されど、裁判所ついては職責に忠実であったという意味で肯定的です。
判決そのものについては、良い感情は抱けないのも事実です。ただ、違和感はあるけど「そういう判決もあり得るなぁ。」と、じじい様ご提供の情報を考慮に入れると、まぁそんな風に思う次第です。ペコリ。
ちょっと話の方向を変えますが、我々日本人は、教員に対して、どの程度の「プロフェッショナル性」を期待しているのでしょうか。
http://ikaruga007.exblog.jp/6129395/
>私の方がじじいさまに謝らなければなりません。m(_ _)m
いえいえ、私こそお気を使わせてしまい申し訳ありません。
アンカーに引きづられた私の誤読ですので、お詫びいたします。
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