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Shabbat Parashat Va'eira 5773

P'ninat Mishpat: Laying Off a Worker During Pregnancy

(from Hemdat Mishpat, rulings of the Eretz Hemdah-Gazit Rabbinical Courts)

Case: The plaintiff (=pl) worked for the defendant (=def), a computer company, and was laid off with two weeks’ notice, during a wave of financially necessitated layoffs. On her last day of work, pl told def that she was pregnant and, therefore, she said, they are not allowed to fire her. Def turned to the authorities at the Commerce and Industry Ministry to receive permission to lay her off. The hearing took place three months later. The termination was confirmed, but only effective from the time of the decision, not the actual cessation of work. Def claims that they should not have to pay pl during those three months, for at the time of the firing, they did not know she was pregnant. Furthermore, they found out that pl started working at another company for higher wages during the three months, which was not known during the hearing at the Commerce and Industry Ministry. While pl admits to having found another job, she claims that she still deserves pay from def for that time. 


Ruling: We posit that the labor laws of the State of Israel are, as a rule, proper and fair and are to be accepted by halacha, at least as the basis of local practice and “communal decisions.” This idea has been confirmed by many rulings of Rabbinical Courts in many cases, prominent among them regarding severance pay. In general, the gemara and Shulchan Aruch employ the rule regarding the laws of employment, that “everything follows the practice of the land.” Employment agreements generally are predicated on an assumption that the laws of the land help shape spoken and unspoken employment agreements. Even organized groups can get together and decide about financial arrangements between members of the group (see Bava Batra 8b).

Regarding laying off pregnant workers, Paragraph 9 of the Law of Female Workers (1954) states that one can lay them off only with the permission of the appointee of the Minister of Labor and Welfare, which has been replaced by the Minister of Commerce and Industry. As long as this appointee works within his field of authority, his decisions should not be questioned. Therefore, even if def did not know that pl was pregnant, we uphold the decision that pl must pay until the time the permission was granted to lay off pl.

On the other hand, there is a concept that has gained much popularity in Israel – we must not allow “the accumulation of wealth without justice” (based on Yirmiyahu 17:11). Beit din feels that this case is an example. The idea of the aforementioned law is to prevent the loss of earning power of a pregnant woman. In this case, pl properly looked and found another job at higher wages. To receive double wages on the account of a firm that hired her and helped her progress in the field is an example of lack of justice. Just because the firing could not be confirmed retroactively does not mean that pl is entitled to double pay.

Therefore, pl is entitled to pay only from the time she was laid off until she found alternative employment.  

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