A criminal investigation or indictment may have far-reaching deleterious consequences for an individual over and above those of the criminal proceedings themselves. Among the most severe are the consequences in the workplace. A criminal investigation or indictment may justify in themselves – and, in certain circumstances, necessitate – workplace proceedings that could severely injure the employee, even before the conclusion of the criminal proceedings. This notwithstanding, workplace proceedings are not criminal proceedings. An individual cannot prevent or gain immunity from workplace proceedings by way of basic principles and rights in criminal law, such as:
- the presumption of innocence;
- the burden of proof lying with the prosecutor;
- the defendant's right to remain silent; and
- the principle that no punishment may be imposed except according to a judgment of a competent court.
An employer that is faced with the decision of whether to take steps in the workplace regarding the employee – and which steps to take – may take into account considerations such as:
- the severity of the suspicions or charges;
- their connection with the employee's employment;
- the position of the employee;
- the effect that the investigation or indictment may have on the employee's job performance;
- the effect that the investigation or indictment may have on the reputation of the employer (and, in the case of civil service, the public trust); and
- the individual circumstances of the employee.
In certain circumstances, the employer may take a lawful decision such as to transfer the employee to another position, or to suspend or even terminate the employment relationship. Before taking any decision, the employer must conduct a hearing (in certain cases, there is also a duty to notify the attorney general of the proceedings). The purpose of the hearing is not to weigh the evidence against the employee or take a position as to the employee's innocence or culpability. Even if the employee is acquitted, the acquittal does not mean that the steps taken by the employer were unlawful, or entitle the employee to seek damages from the employer.
The National Labour Court recently adjudicated the case of a senior employee of the Tax Authority who was employed on an individual fixed-term employment contract.(1) During the term of the contract, a criminal investigation was initiated on suspicion of bribery, fraud and breach of trust relating to the employee's position. The attorney general filed an indictment against the employee. After the indictment was filed, the term of the contract expired and the Civil Service Commission decided not to renew the contract. The commission conducted a hearing, during which the employee claimed that:
- he was entitled to the protection of the presumption of innocence;
- the charges against him were unfounded; and
- the commission should weigh the evidence.
The commission refused to do so, and reached its decision on the basis of the indictment having been filed and the severity of the charges included in the indictment. The court ruled that the decision of the Civil Service Commission should be upheld, and that it was not the commission's duty to weigh the evidence against the employee or to reach a decision as to the innocence or culpability of the employee. The court ruled that the commission had been entitled – on the basis of the attorney general's decision to file an indictment and in light of the severity of the charges included in the indictment – to decide not to renew the employee's contract.
For further information on this topic please contact Shoshana Gavish at S Horowitz & Co by telephone (+972 3 567 0700), fax (+972 3 566 0974) or email ([email protected]).