Shabbat Parashat Vayeira 5779

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

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 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 [to be discussed next time]. 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: The idea of severance pay has a root in Torah law, in the halacha that an eved ivri is given gifts when he leaves his master. Although that financial relationship does not exist in our days, the Sefer Hachinuch (#42) says that it is proper to grant this for any long-term worker. Israeli law has adopted it for all workers, with the amount being a month’s severance pay for every year served. However, the law applies only when workers are fired, not when they quit of their own volition. The pay can also be reduced or eliminated based on the circumstances.

A worker cannot determine that an employer is firing him, and an employer cannot determine that a worker has quit. According to logic (which is reinforced by the rulings of Israeli labor law, which is important regarding a right that is linked to Israeli law and common practice), the situation is viewed as follows. Fundamentally, def threatened pl that if she did not comply with his decision, she would be fired. On the other hand, even if we do not determine whose version of the story is more accurate, the situation is tempered by pl’s problematic actions.

Pl’s demand for a vacation day under circumstances when it was difficult for def to find a replacement and her refusal to accept def’s decision was a breach of authority. These are grounds for firing, in which case the law allows the courts to reduce the severance pay. Furthermore, it behooved pl, if she wanted to continue her employment, to approach def after Rosh Hashana and see if she would be allowed to return. When she failed to do so, she demonstrated that there was an element of quitting to her behavior. Therefore, we rule that pl should be awarded two thirds of the severance pay that would normally would be due to her.

Next time we will continue with other elements of claims – plus a surprise in the ruling.

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