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From
the records of the Haifa Rabbinical Court
Rabbinical
Judges: Harav Y.N. Rosental (Av Beit Din -- Head Judge), Harav O.
Hadaiah, and Harav B. Rakover
12 Adar, 5718 (March 4, 1958)
The
unique features of this court decision raise a number of crucial
issues, including the relationship between law and ethics -- going
beyond the letter of the law and the legitimacy of firing public
workers.
The case itself is unique -- about a fired worker in denial, continuing
to work after his dismissal.
The Case
A now elderly man, Avraham, worked for 12 years as a maintenance
man, cleaning the building of an educational institution in an Israeli
city in the north. For a number of years he was paid directly by
the school, and for a number of years, after the school was absorbed
into one of the national school systems, he was paid by the local
council as part of a general maintenance budget.
In 1956 the school system and the local council decided they needed
a full time maintenance worker that was to be employed by the local
council. However, they did not want to hire the now elderly Avraham.
They instead hired a young maintenance man and explained to Avraham
that his services were not needed. Avraham, apparently not accepting
this reality, continuing to work despite his de facto dismissal
(he was not hired for the new job just created yet had until now
only been paid through a general maintenance fund and therefore
not eligable for severance pay). The soft hearted local representative
of the school system found a fund from which to support Avraham
for a year, continuing to pay him the equivalent of his 60 lira
a month salary, while explaining to him that the arrangement is
only temporary.
In 1957 the fund ran out, and Avraham was left without a salary,
but still continued to come to work.
The Claims
Avraham now makes three claims against the representative of the
school system:
1. He contests his dismissal;
2. He claims that he should be paid wages for the period of time
he worked after his dismissal (despite the hiring of a replacement);
The Ruling
The court of course did not obligate the defendant to rehire Avraham
-- it was the city council and not the school system that employed
him at the time of his replacement.
The school system was also not obligated to compensate him for the
unsalaried work he did -- at the outset they very clearly stated
that his work was unneeded.
However, the court’s final ruling was worded as follows:
“In our case, where the case involves a public institution,
and where for 12 years he cleaned for them, and for many years
the institution was responsible for him . . . and he is a poor
man, . . . it is incumbent upon them, in the eyes of the court,
to pay a sum of 25 lira a month for a year. This is in addition
to the sum they already paid him immediately after his dismissal
-- 60 lira a month for a year.
They should also take pains to find him another job for support
in order ‘to do that which is just and good.’”
The court’s precedent for obligating the school system to go beyond
the letter of the law was a similar ruling by the author of the
responsa Mayim Chayim (Orach Chayim #6). A small town had hired
a ritual slaughterer that worked for them for years. At a certain
point, the Jewish community in the town was forced (through a rearrangement
of the government of the town) to get their meat from a nearby large
city. The slaughterer found himself out of a job and claimed that
the community should continue paying him his salary as if he still
was employed. The community countered that they were forced because
of financial constraints to change the arrangement for getting the
community’s meat.
The Mayim Chayim ruled that despite their having no other choice
in the matter and no legal obligation towards the slaughterer, it
is proper and fitting for the community to support him. They must
go beyond the letter of the law because he is a poor man and his
children are dependent on him.
Legal Background
In the course of their decision, the court summarized some of the
laws of dismissing employees. Among them are the following:
1. It is permissible to dismiss an employee after the period of
time he was agreed upon to be employed (Bava Metzia 76, 77, Shulchan
Arukh Choshen Mishpat 333). A worker hired with a daily or monthly
wage can be dismissed at the end of the day or month. (Chazon Ish
Bava Kamma 23:1) Neither the employee or employer are obligated
to be tied to each other indefinitely (like servant and master).
2. An employer is obligated in severance pay for a dismissed employee.
Because this is common custom it has the force of law (Israeli Rabbinical
Court Decisions vol. I, p. 330).
3. If it will take time for a dismissed worker to find new employment
he must appropriately be warned ahead of time (Chazon Ish, ibid.).
4. A worker who has been employed permanently (if such a custom
exists) cannot be fired unless his work is found to be flawed or
the employer can find him alternate employment with no loss to the
employee.
5. Under what conditions a public worker can be fired is the subject
of a dispute between halakhic authorities. Maimonides (Mishneh Torah
Hilkhot Klei Hamikdash 4:21) writes: “One cannot be deposed from
a position of “serara” (leadership) in Israel unless he fails to
work properly (the Hebrew “sarach” is a synonym for sinning).” Some
limit this to positions of honor or religious status, though there
is an opinion (Even Haezel Hilkhot Sekhirut 10:7) that it applies
to all public positions.
Prepared by R. Eliezer Kwass
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