Shabbat Parashat Chayei Sara 5779

P'ninat Mishpat: Quitting or Firing? – part II

Case: The plaintiff (=pl) was a valued saleswoman for the defendant (=def), a storeowner, for over a year. During work two days before Rosh Hashana, she informed def that she would be unable to work the next day. Def said that she was not excused, and a heated dispute with threats by def ensued. Pl asked def if she would be fired for not coming in, and def said it would not be considered his firing but her quitting. Pl did not come in and did not contact def in the days after Rosh Hashana. Pl is now suing for severance pay (just over 5,000 shekels – her monthly salary) and for various other employee rights she claims to deserve. These include: payment for not giving sufficient warning of termination; payment for termination without an employer/employee hearing; making up missed payment for an extra day and hour of work. Pl claims that she could not come in the next day because of her child’s illness. She also claims that according to the contract, she is not required to work on Fridays and that Erev Rosh Hashana is equivalent to Fridays. According to def, she had admitted that she was not coming in because she wanted to cook for Rosh Hashana.     

Ruling: [Last time, we saw that there is doubt about the question of whether pl was fired or quit, and therefore she is to receive two thirds of the normal severance pay.]

Regarding lack of notification, the classical halachic sources do not require it, but the Chazon Ish (Bava Kama 22:2) learns from the need for warning before removing a renter from a home that the same should be done for a worker. However, in this case, where the worker refused to abide by the employer’s decision, there should be no payment. Pl knew her removal was coming, and it was not reasonable to have the sides continue to work together under such a relationship.

There is also no need for payment for lack of a hearing, as what each side had to say on the matter of their dispute, they said. There is not a need for an additional meeting for the sake of a hearing.

Regarding the demand for pay for an extra day and hour, pl is correct, as this is spelled out in the contract. Even though the contract was not signed by one who has the authority to sign for the company, all agree that the terms of employment spelled out in the contract remained the assumptive binding ones. Def’s claim that pl agreed to work the extra time for free is counter-intuitive and unproven, and is therefore not accepted.

[And now for a surprise!] Pl was receiving support from Bituach Leumi (National Insurance Institute) for low-income families and in order to not lose it due to her salary, 85% of her salary was fictitiously attributed to her daughter. Although def agreed to the arrangement, the defrauding of the governmental agency was initiated by and done for the benefit of pl. We note that a large part of the claims here are based on Israeli law. Beit din will not allow pl to have things both ways (use special government employment laws and cheat the system). Therefore, the award in practice will be only in relation to the percentage of her salary that was reported – 15%.

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