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Shabbat Parashat Ki Tavo 5782

P'ninat Mishpat: A Worker who Received Pay without Coming to Work

(based on ruling 79018 of the Eretz Hemdah-Gazit Rabbinical Courts)

Case: The plaintiff (=pl) is an educational counselor who worked for a school (=def) for 7 years, and was fired in 2018. Pl is suing to have his compensation package completed with the legally mandated fringe benefits, including pension and severance pay. Additionally, part of pl’s salary was paid by an NPO, and he wants fringe benefits for that money too. Def has counterclaims against pl. In the two years before his dismissal, pl barely worked, so they demand return of approximately 102,000 NIS of salary. They also demand that pl complete payment for his children’s tuitions at the school (98,000 NIS). Pl counters that it is standard that employees of def do not pay tuition to def. 


Ruling: Def brought witnesses from their staff that pl stopped coming to work. Are they considered valid witnesses? The gemara (Bava Batra 46b) rules that a sharecropper can testify that the ostensible field owner is indeed the owner, but this is only if the sharecropper does not gain from the testimony. The Tur writes that if he has better conditions than the standard sharecropper, he is considered to have an interest in the testimony and is not believed, and this is how the Shulchan Aruch (Choshen Mishpat 37:2) rules. The Rama adds that any additional benefit from the testimony disqualifies him. In this case, the witnesses’ salary is not impacted by the testimony. On the other hand, it is possible that they fear some form of retribution if they do not testify in accordance with their employer’s will. While the Rambam (Eidut 16:4) rules that even a slight interest disqualifies, the Terumat Hadeshen (354) says that this is only when the benefit is definite. Here it is somewhat more difficult to accept the testimony because the witnesses took part in the decision to fire pl. However, in this case, because pl did not clearly deny the claims of at least highly reduced work hours and was evasive to beit din’s questions on the matter (see Shur Harosh 107:6), beit din concludes that pl worked far under what was required of him. Nevertheless, pl does not need to return the pay he received. Since def was aware that pl did not deserve to get paid and did so anyway, and because members of def’s administration admitted that their style is to go to great lengths to not cause hard feelings, we view it that they were mochel the money.

Pl receives fringe benefits for the time he was paid, as according to law, this must be provided to all paid workers. This includes severance pay, as pl was not told that he would be fired if things continued as they were. However, money paid through a different NPO are not def’s direct responsibility, and def is not required to pay for the fringe benefits related to that pay, as pl agreed to accept the money from them, and knew they were not giving the fringe benefits.

Pl has to pay his children’s tuition. Pl knew that this demand was made of him and indeed paid part of the tuition. He did not prove that there is an absolute exemption for workers’ children, and therefore it was and is def’s right to hold pl to that obligation.

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Tishrei 20 ,5781


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bat RMoshe Zev a”h.

Tamuz 10 ,5774


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Av 4


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Adar 28, 5781


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Av 30, 5781


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Adar II 17, 5782


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Adar II 18, 5782


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Nisan 27, 5782


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