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 Labor Law Client Update 

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January 19 2017

General Obligation of Non-discrimination Requires the Employer to give Favorable Consideration to the Age of an Adult Employee When Deciding Whether to Fire

The plaintiff, Bat Sheva Simchi, was employed at the chemical laboratory of the defendant - Maabarot Products Ltd – in Kibbutz Maabarot.  She holds a first degree in biology and worked for the defendant for more than 17 years.  There was no dispute that she was good at her job. At the age of 63 she was fired further to a recommendation of an organizational optimization consulting firm which the defendant had engaged.

The general prohibition against discrimination between employees or potential employees on grounds of age which applies to the employer (and which is known as 'Ageism') is anchored in Section 2 of the Employment Equal Opportunities Law, 5746-1988 (the "Equal Opportunities Law").  The burden of proving that the employer did not act in a manner contrary to the provisions of the Equal Opportunities Law is on the employer.  The failure to mention the age as a reason for an employer's decision to fire does not attest to the absence of discrimination.  The test in this instance needs to be objective and on results.  Namely, that there was no intention to discriminate on the relevant discriminatory grounds when assessing the existence of discrimination.  The employee needs to prove that there were no grounds for his or her dismissal resulting from his or her acts.

The court decided that in this case the employer was required to give favorable consideration to the age of the employee, and it was not sufficient that the age of the plaintiff was not used as negative factor in the decision to fire her.  The court further decided that absence of any reference to the age of the plaintiff employee, in a positive context and in a manner which would act in her favor, stains the entire decision to fire her and amounts to a decision taken on grounds of prohibited discrimination against age.   According to the labor court, the employer should have found alternative suitable employment within the company. On the basis of this reasoning, the court awarded the plaintiff a salary for a 12 month period (some NIS 110,000) – which represents the highest rate of awards made in decisions on this point – and also compensation of some NIS 50,000 for mental anguish caused as a result of the discrimination, as well as legal fees and expenses.
 
Reference: SASh (TA) 49821-01-16 Simchi v Maabarot Products Ltd (the Local Labor Court in Tel-Aviv, 4.12.2016) 
Disclaimer: This Newsletter is intended only to provide general updates to clients and for no other purpose. Nothing in this Newsletter constitutes any opinion or advice on the subject matter dealt with therein. For any advice or opinion, clients are advised to approach the relevant lawyer at Naschitz, Brandes Amir & Co.

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Edited & Written by Dr. Sharon Yadin, Adv.
English version by Adv. Helen Raziel