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a Happy New Year
1. The possibility of injury to reputation is an important consideration in initiating and conducting legal proceedings by an employee
An employee who has been the subject of disciplinary proceeding due to a prima-facie well-founded suspicion of activity constituting a criminal offense or other flawed activities, or an employee who does not receive a raise or a promotion or was not elected to a position for which he/she presented their candidacy due to a low performance evaluation must consider, alongside the legal risks and benefits and the costs of conducting proceedings, the injury to reputation which is a by-product of legal proceedings.
This understanding has recently been underlined in a Regional Labor Court decision[1] concerning a motion submitted by an employee, to conduct behind “closed doors” the hearing relating to her claim for legal relief in respect of her dismissal due suspicion of activity constituting a criminal offence. The employee claimed that conducting the hearing behind “closed doors” is necessary for preventing severe harm to her privacy.
The Regional Labor Court rejected the employee’s motion.
The general principle is that court hearings are open to the public. This principle is anchored in a basic (constitutional) law and has been defined as “one of the main constitutional principle that our legal system is based upon” [2]. This rule has certain exceptions such as when the subject of the proceedings concerns state security, minors, sexual offenses, or when necessary for protecting the security of a party, witness or other person whose name is mentioned in the proceedings, or in order to avoid a severe injury to the privacy of one of them.
With respect to the exception concerning the severe injury to privacy, the court relied on the Supreme Court ruling that “the protection of privacy is not one of the purposes of the protection of privacy law; and certainly not one of its main purposes”. In other words, in the balance between the right of the public to know (conducting proceedings in open court) on the one hand and the reputation of the litigating parties on the other hand, the reputation does not have an upper hand.
In the context of employment law, the injury to reputation involved in conducting legal proceedings is certainly a relevant consideration in taking a decision challenging an employer’s decision which itself is derogatory. This adds on to other considerations of the risks and benefits in conducting legal proceedings and legal costs. From the point of view of exposures it should be remembered that the chances of interfering in an employer’s decision in issues that are in the employer’s prerogative are in any case, not high, unless there is persuasive evidence as to unlawful conduct on its part [see further under the title that follows].
2. More on Reputation and Anticipation
A perfect example of a legal proceeding in respect of which it appears apparent that the resulting injury to reputation could have been anticipated to outweigh its benefits can be found in a recent ruling on a claim of a school teacher who completed a PhD in a foreign university to overturn the decision of an evaluating committee not to recognize the PhD for the sake of a salary increment [3].
In the process of the interview with the evaluation committee it transpired that the author had copied paragraphs from other works without acknowledging and citing the source (plagiarism) and unsurprisingly the committee did not recognize the PhD (the connection was the employees’ request for a salary increment as aforesaid).
The employee decided to challenge the decision in the Labor Court.
Beyond the interesting analysis of the sources and rationale in Jewish Law for the prohibition of plagiarism, the ruling is also a lesson in weighing the risks and benefits of conducting legal proceedings in the employment relationship.
As a background to its decision to confirm the decision of the evaluating committee, the ruling largely quotes from the recorded dialogue between the plaintiff and the evaluating committee, from which it is clear that the plaintiff admitted to having copied paragraphs from other works without acknowledging and citing the sources and also, that the plaintiff apparently did not – at least initially – comprehend the severity of her acts.
As long as the plaintiff had not initiated legal proceedings, it can be assumed that only a handful of people were privy to the knowledge of the plaintiff’s conduct. Once the plaintiff initiated a legal proceeding, the information – both as to the copying and to her (at least initial) difficulty to comprehend the severity of her acts – is open to the public view due to the principle of holding proceedings in open court. On the other hand it could be argued that this is hindsight since the first instance (the Regional Court) accepted the claim and ruled that the state’s conduct had lacked proportionality.
In our context, the question arises as to the likelihood of anticipation, before the initiation of the proceedings, that the damages will outweigh the benefits.
3. Notice to Employee of Change of Employer [4]
The identity of the employer is a fundamental factor in the employment contract. The identity of the employer is also one of the details to be included in the notice to employee according to the Notice to Employee of Employment Conditions Law of 2002. Therefore, in the event of a changing of employer, the employer must notify the employee of the change.
According to the Wage Protection Law of 1957, in the event of an enterprise changing hands, or dividing or merging, the new employer is liable for the liabilities of the previous employer concerning wages and contributions to provident funds but the new employer has measures to assess the scope of its exposure and protect itself with indemnity provisions if the employer publishes a notice in the premises and in two daily newspapers notifying the employees of their right to sue the new employer on the liabilities of the former employer as aforesaid, with the result that the new employer will be released from its liability towards employees who do not submit their claim within 90 days of publication of the notice.
In the event the employer provides notification of the change in employer and of the employees‘ entitlement as aforesaid via the employees pay slip, can this be considered as having fulfilled its duties of notification under the Wage Protection Law?
In a recent case adjudicated in the National Labor Court, the National Labor Court mentioned that this way “achieves the purpose of the law – actually informing the employee of the change in the identity of the employer and the possibility of submitting a claim against the new employer" in respect to the liabilities of their former employer as aforesaid. However, in the case in hand the National Labor Court did not provide any notification so the question remained under consideration for future ruling.
In other words: the opinion opens the way for an interpretation according to which an employer who notifies its employees of the change of employer and the employees entitlements via a wage slip, can be considered as having fulfilled its duties under the Wage Protection Law with the result that the new employer will be released from its liability towards employees who do not submit their claim within 90 days of publication of the notice.
4. As a matter of public policy – the general rule is that an employer should not be held tortuously liable for physical or mental injury or disability allegedly causes by quarrels in the workplace or otherwise unpleasant or injurious procedures
In a case recently adjudicated, an employee filed a claim for damages for the alleged injury caused her due to her dismissal and the preceding procedures [5]. This is not the first claim of this sort filed in the civil court. There have been previous claims of employees who allege that they have been physically or mentally injured by various events in the workplace such as quarrels, dismissal procedures or other procedures such as evaluation. Following a Supreme Court ruling, the court rejected the claim and here are the main principles of the ruling:
An employer is not immune from tortious claims on part of its employees and has a “conceptual liability” towards its employees.
However, “the distinction between the laws of tort and the laws of contractual insurance or social security” must be maintained: “within the area of social security, the legislature has recognized that a myocardial infarction (MI) can be caused during and due to work and this is routinely litigated in the Labor Court. Imposing tortious liability due to MI as a result of anger or agitation in the workplace, can turn any personal interaction in the workplace to a potential arena of tortious liability, and thus the law of tort will become close to absolute liability and the distinction between the law of tort and the law of social security will become blurred” [7]. This distinction and the non-imposition of sweeping tortious liability on the employer is well based in legitimate economic considerations: “for our purposes, in order to avoid a case of an employee incurring myocardial infarction (MI) due to the conduct of his/her colleagues, employers will have to invest significant resources against a low risk of occurrence. Such imposition of tortious liability has unwelcome commercial and economic ramifications and, in my opinion, on employment relations. If an employer will be expected to be overly involved in the relationship between employees and themselves, this may, in turn, damage other values, such as the privacy of employees”.
The Supreme Court referred specifically to MI allegedly caused by a quarrel between colleagues in the workplace, but this ruling clearly has wider ramifications.
Indeed, this ruling has recently been applied to a claim which alleged other physical and mental damage.
This ruling is of tremendous importance: exposing an employer to tortious liability due to injurious everyday occurrences in the workplace – some of which are an integral and essential part of the workplace, others unavoidable and others that the employer has no possibility of protecting himself against – can be ruinous.
[1] Labor Claim 347-10-17 Chai – Gad Ltd. versus Julia Greizal.
[2] Labor Appeal 120/07 Ometz – Citizens for Proper Social and Legal Administration versus Anonymous.
[3] Labor Appeal 2664-0417 The State of Israel – Ministry of Education versus Nehama Yochai.
[4] Labor Appeal 5300-12-17 Carmel Ezra Shakarzi versus Mulue Haile.
[5] Civil File (Afula) 36901-01-14 V.T, versus Bezek Communications Company Ltd.
[6] Civil Appeal 9073/09 Assuta – Medical Centers Ltd versus Michal Sherf.
[7] Ibid. Section 17 of the opinion of Honorable Justice Amit.
The firm's Labor and Employment Law Group is at your service.
For further information, please contact:
Shoshana Gavish, Adv.
Head of the Labor and Employment Law Group
Tel. + 972 3 5670618
shoshanag@s-horowitz.co.il
The opinions expressed in this report are solely the author’s.
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This Memorandum is not a legal opinion, is not a substitute for legal advice, and is not intended for readers to rely on it as a legal opinion. In any case, you should seek professional legal advice.
