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Shabbat Parashat Vayechi| 5767

Pninat Mishpat

Severance Pay - Based on Piskei Din Rabbani’im - vol. I, pp. 330-333
Case: The plaintiff worked for the defendant as a fundraiser. For the first two years, the defendant called him a temporary worker, and he received only a percentage of the donations he collected. He subsequently was hired with a monthly contract. At some point he was asked to increase his responsibilities, and when he refused, he was fired. He is now demanding severance pay and pay for days off that he was never granted.
Ruling: The concept of giving a worker extra pay when his period of employment ends is based on the mitzvah to give a parting present to a Jewish servant upon his being freed. The Sefer Hachinuch (#482) says that the wise will learn from this mitzva to act similarly toward workers other than Jewish servants at the end of their employment. Of course, a source of this nature does not make such severance pay halachically binding.
 However, the fact is that the custom to give severance payment has been accepted throughout Israel. There is a broad rule regarding employment that the work and pay conditions follow the accepted practice of the area (Bava Metzia 83a). The gemara states that even if one is already paying more than the standard wages, he is still bound to comply with the accepted “fringe benefits.” Therefore, the defendant should have to pay appropriate severance payment.
 One could counter that the Haghot Ashri and Mordechai (ad loc.) say that a local practice is valid only of it was adopted with the involvement of the sages of the area. However, it is clear from the sources they cite that this requirement pertains only to customs that contravene Torah law. As we recall, the Sefer Hachinuch said that severance pay is in the spirit of Torah law. Although that concept is not binding in its own right, the common practice that made it standard does.
 In our case, if the work relationship was a normal one, then the amount of the severance would also be normal. However, in this case, there are questions of whether the nature of the employment was a normal one. We feel that even if the fundraiser worked without a set salary, the amount of time and the scope of the job were such that he was considered a full-fledged worker. We note also that the plaintiff was not fired due to any negligence or wrongdoing on his part, which might have caused him to lose benefits.
 Additionally, the normal work conditions are that workers receive paid vacation days during the course of the year. As the defendant did not receive days off, beit din will compensate him for that too. Since he no longer works for the defendant and thus cannot take days off now, the compensation comes in the form additional payment.
 The sum of money that beit din required the defendant to pay is not of interest in this context.
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This edition of Hemdat Yamim is dedicated
to the memory of R’ Meir ben Yechezkel Shraga Brachfeld o.b.m.
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