Shabbat Parashat Ki Tavo 5779

P'ninat Mishpat: Firing with Insufficient Warning? – part I

Case: The plaintiff (=pl) worked for the defendant (=def), an NPO, in 2012-2013, doing work on their website. In 2014, def asked pl to return in a different, expanded role to help def out of financial woes. Pl explained that he needed work stability and wrote a contract that required def to give him 60 days warning before terminating employment. Toward the beginning of pl’s tenure, def replaced their director. Since pl worked closely with him, pl met with the head of def (=hdef) to ask about his future. Hdef assured pl that he would not be fired. As time went on and pl felt excluded from decisions, he asked to meet with the new director (=ndir), but this took weeks to happen. Finally, on 29.12.14, during his 6^th month of employment, ndir fired him and told him he might not get paid for that month. Pl is suing for salary for 60 days after the notification, as well as for 10,200 shekels for payment for travel over the whole period per the contract, and lawyer’s fee (to be discussed in part II). Def said that the contract is to be read that the need for 60 days notice is only after the six-month trial period.    

Ruling: The relevant paragraph in the contract has three sections: A. The first employment interval is 6 months. B. If the sides agree to continue, the agreement automatically renews itself for 12 months. C. Each side will give prior notification of 60 days before ending the employment.

Pl claims that C, requiring notice, applies to the entire period. Def argues that it refers only to B and that A refers to a six-month trial period that requires no warning. Beit din finds that the paragraph can be read either way. Def invokes the rule (Law of Contracts 25.1á) that when a provision has multiple understandings, is to be read to the detriment of the one who had an advantage in its formulation. In this case, pl wrote the contract. However, even according to this law, pl did not have an advantage, as he is an individual who wrote the provision without legal help, whereas def had a legal staff to review it.

The halachic sources on the matter are complicated. The Shulchan Aruch (Choshen Mishpat 61:15) says that we look carefully at the language, even if the litigants do not have great command of legal language. But he continues (ibid. 16) that some say to follow the intention rather than the written word. The Nachal Yitzchak reconciles that in order to add a provision not written, very strong indications are needed. If there is a provision, and it is unclear how broadly to apply it, we can use external indications to do so.

There are valid arguments (omitted in this presentation) whether there was a trial period and whether only afterward formal notification was needed. However, there is no question that pl demanded to be warned before being fired. Since pl asked about his status during the six months, it was def’s responsibility to give him the information he requested. Since hdef and ndir either purposely or unintentionally withheld the information and gave pl reason to believe he would continue, the requirement for 60-day notice certainly applies.

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