Ofer Kovacs September 20 2017 Supreme Court intervenes in state decision to limit employment term of judges' legal assistants S Horowitz & Co | Employment & Immigration - Israel Ofer Kovacs Employment & Immigration IntroductionFactsDecisionCommentIntroductionAs a general rule, employees in the civil service are hired through a letter of appointment for a permanent tenured position (ie, until retirement age). However, even in the civil service, certain categories of employees are employed under special contracts for limited periods (usually extendable). Such categories include employees employed for temporary projects or in positions which require an especially high degree of trust. Employment under a special contract also enables the state to provide employees with superior working conditions as compensation for the provisory nature of the employment and the lack of tenure.The issue of fixed-term employment – both in general and in the civil service in particular – raises many legal issues, some of which were examined in a recent case where the Supreme Court of Justice ruled on the legality of a decision to limit sweepingly and rigidly the maximum period of employment of judges' legal assistants (HCJ 3758/17 The General Organisation of Workers v The Management of Courts).FactsIn the judiciary system, 660 lawyers (most of whom are women in the first decade of their legal career) are employed as legal assistants to judges. Each legal assistant reports to a single judge, who chose him or her from a pool of applicants who have passed a prior selection process. The assistants execute professional legal tasks for judges, such as preparing draft rulings and performing legal research.According to the state's decision, legal assistants are employed under special contracts for a fixed period of one year. At the end of each year, the contract may be extended for an additional year at the judge's request. The maximum length of employment is four years, although this can be extended by an additional two years in exceptional cases. Notwithstanding the fixed period of contracts, they contain a provision permitting the state to terminate the employment relationship at any time during the fixed term.The legal assistants in this case did not dispute the civil service commissioner's authority to employ legal assistants on fixed-term contracts. Rather, they argued that the decision to limit sweepingly and rigidly the maximum period of their employment unlawfully restricted administrative discretion and would prevent its exercise in the event that a legal assistant requested to remain in his or her job. The legal assistants further contended that the decision was incorrect from a constitutional perspective, as it infringed on their rights to freedom of occupation and human dignity.The state contended, among other things, that the limitation could be justified on various grounds, including:the unique nature of the job, which is suitable for lawyers at the beginning of their careers;the wish to revitalise the pool of those occupying the job;the wish to open up the opportunity to perform such work to more lawyers;the desire to prevent the dependency of a judge on a single assistant for prolonged periods; andthe desire to prevent situations in which judges retain unsatisfactory legal assistants due to a difficulty in terminating their employment.DecisionIn a majority opinion, the Supreme Court criticised the decision-making process that had led to the decision to limit the legal assistants' length of employment sweepingly and rigidly. The court stressed that the reasons for the decision were given retroactively, after the legal assistants had taken legal action, without having been properly recorded in real time. The court also ruled that some of the arguments presented by the state to support the restriction of the legal assistants' employment should have received little (if any) weight, and that the state gave little consideration (if any) to arguments that it should have considered, such as:the provision entitling the state to terminate a legal assistant's employment before the expiry of the employment contract;the mental anguish of an employee whose employment is arbitrarily terminated despite high performance; andthe damage to judges who are deprived of the services of legal assistants with whom they wish to continue working.It was further ruled that the state had failed to prove that it had considered less damaging solutions than the sweeping limitation of the length of employment of all legal assistants.In light of the above, the court concluded that the decision to limit the period of employment was materially flawed and it issued an absolute decree requiring the state to conduct collective negotiations with the employees' union to reach an agreed alternative solution.The court also ruled that instead of establishing an exceptions committee that would be authorised to extend the term of employment of legal assistants in exceptional circumstances (a solution to which the state had consented), the exceptions committee would be authorised to consider individually the request of each legal assistant who wishes to extend his or her term of employment, while considering:the professional capabilities of the legal assistant;his or her past employment periods; andthe opinion of the judge to whom the legal assistant provides assistance.It was further ruled that the procedures of the exceptions committee should be determined in the framework of said collective negotiations.CommentAn interesting aspect of the ruling are the dynamics that evolved due to the state's excessively rigid position and its wish to maintain its authority. This position eventually resulted in the involvement of the employees' union and required a judicial decision compelling the state to be more flexible with regard to:the employment model of legal assistants (ie, the possibility of an extension replacing the superimposed sweeping limitation of the maximum length of employment);the entity that is authorised to make the decision (ie, an exceptions committee to be agreed on with the union replacing the sole authority of the state); andconsiderations to be deliberated (ie, considerations concerning each individual legal assistant and the individual judge whom he or she assists replacing the supremacy of the state's bureaucratic considerations).This ruling is an example of how the Supreme Court can create or force the legislature or the parties to an employment relationship to create special solutions for employment situations that do not fit conventional models. Other examples include:the special exclusion of foreign caregivers who live in the homes of their patients from the Law of Work and Rest Hours;the ruling that prevents the unlawful enrichment of persons who are retroactively and justifiably regarded as employees using a set-off mechanism; andthe ruling that requires an employer to compensate an employee when the employee's employment conditions are adversely altered, albeit lawfully.For further information on this topic please contact Shoshana Gavish or Ofer Kovacs at S Horowitz & Co by telephone (+972 3 567 0700) or email ([email protected] or [email protected]). The S Horowitz & Co website can be accessed at www.s-horowitz.com.