Shabbat Parashat Tzav 5783

P'ninat Mishpat: Payments after a Gradual End of Employment

Case: The plaintiff (=pl) worked in the food industry for a company (=def) for four years. Due to Corona cutbacks in work, def put pl on unpaid leave in July 2020, originally for 3 months, but it was extended open-endedly. After over a year of receiving payment from Bituach Leumi, pl was still not returned to work. Pl claims that, practically, def fired him, and def is required to make the following payments: 1. Severance pay (upon firing); 2. Compensation for firing without notification; 3. Compensation for firing on personal grounds; 4. Payment for delaying severance pay. Def claims that they were allowed to fire pl for regularly breaking their contract by purposely working slowly so he could claim more overtime hours than he was authorized to take. However, def claims not to have fired pl, as they sent him messages that he can return to his work, and he never replied. The two disagree whether pl’s social privileges should be just upon his base salary or also his global extra hours.

Ruling: We should note that beit din’s policy is that employment legislation and ordinances are halachically binding.  

We accept def’s contention that they did not fire pl, as they did nothing to indicate firing. However, pl is still entitled to payment coming to those who are fired, as placing a worker in unpaid leave for an extended amount of time is worsening a worker’s conditions, in which case a worker can quit and have the rights of one who was fired. However, since there was no firing, there cannot be a claim of firing without warning.

The Law of Equal Opportunity in the Workplace forbids discrimination against a worker for a variety of factors, including age, gender, and religion. However, pl did not pinpoint any reason for discrimination and certainly did not prove discrimination. Def also identified specific reasons why they were unhappy with pl’s work, which were neither proven nor disproven.

Regarding the salary for calculating the social rights, def claimed that the pay for extra hours was not guaranteed but depended on whether he did the extra work or not. They point to the renewed contract that states that if there will be a reduction in hours worked, there will be a reduction in salary. According to the law, the basis of the salary for such matters as pension does not include additions to the base salary that are conditional on some factor, including extra work. During the later period of employment, pl did not receive the extra compensation in the social rights nor was his support during unpaid leave based on this amount, and pl did not protest the matter at that time. Even if pl was not aware of these factors, he still is not able to demand rights beyond what his contract awards him.

Pl also made a claim based on turning down a job offer due to his job with def, for which he should be compensated. We reject this claim. Not only is that a damage of gerama, but also if pl had wanted that job, he should have called def and gotten a picture as to his prospects regarding if and when he would be returning to work.

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