Facts
Decision
Comment


On June 4 2013 the National Labour Court issued its ruling in Hazut v Israeli Railway Ltd.(1) The case centred on the protection afforded to an employee under the Protection of Employees (Exposure of Offences, Unethical Conduct and Improper Administration) Law 1997.

Facts

The case dealt with an employee who had submitted complaints against various people in the workplace, including members of the employees' committee. The employee was subjected to harassment through which:

  • he was ostracised;
  • his candidacy for election to the employees' committee was annulled;
  • verbal and physical attacks were made against him; and
  • threats were made against him.

In addition, many complaints were filed against the employee, and a number of false complaints were filed with the police. The employee was subsequently brought before a disciplinary tribunal and dismissed.

Decision

The labour court accepted the employee's claim against the employer almost fully. The court not only ruled that the employee should be compensated financially for breach of the law, but also held that he should be reinstated in the workplace, despite the fact that seven years had elapsed between his dismissal and the ruling.

In addition, the court awarded the employee compensation in an amount equivalent to what he would have received in salary had he not been dismissed, in respect of the full period from the date of his dismissal until the date of his reinstatement (less the sums paid to him on his dismissal and the sums paid to him during such period from other employment or from unemployment benefit). In addition, the court ruled that the letters of complaint filed against the employee following his complaint should be removed from his personnel file.

Comment

The ruling is an example of the issues that often characterise cases in which employees expose corruption in the workplace. The course of events that typically occurs, as in Hazut, can be simplified as follows.

An employee submits a complaint against his or her direct superior in relation to an act of corruption or improper administration. In turn, the superior submits a complaint against the employee, accusing him or her of bad performance and incitement. The employee's complaint is transferred to the internal controller and the superior's complaint against the employee is transferred to a disciplinary investigation. As a result of making the complaint, the employee may become ostracised. He or she may attempt to enlist other employees to support his or her cause, although often without success. Where the employee succeeds in gaining support, groups for and against his or her position may be formed. As a result, relationships in the workplace may unravel and the atmosphere may become fraught with tension and hostility. As a consequence of the energy invested in the conflict, work may suffer.

Whistleblowers will ultimately be protected through the special remedies afforded by law – both procedural and material. However, an employee who wishes to receive the protection of the law must fulfil several cumulative conditions.

Good faith
First, the employee's complaint must have been submitted in good faith. The test for good faith does not equate to proving the truth of the complaint. However, if the employee does not hold a good faith belief in the truth of the complaint, the condition of good faith will not be fulfilled. The timing of the submission of the complaint may cast light on the issue of good faith on the part of the employee. For example, if it transpires that the employee knew of the act of alleged corruption for some time but chose to turn a blind eye, submitting the complaint only after a dispute occurred between him or her and the superior (eg, where the superior has withheld his or her promotion), it may be suspected that the complaint was submitted as an act of revenge. In such case, the employee will not be entitled to the protection of the law. The law is not there to protect employees who suppress complaints of unlawful or improper actions in the workplace and accumulate them as an arsenal in order to remove colleagues or superiors who put obstacles in the way of their promotion or to take revenge against them.

Relation to workplace
Second, the employee's complaint must relate to actions defined in Section 4(2) of the law as:

"breach of law in the workplace, or breach of law relating to the employee's employment or to the business or activity of the employer and in a public body – also if the complaint relates to unethical conduct or improper administration."

Thus, for example, a complaint that relates to the superior's familial or financial crisis or private life, but has no relation to the workplace, is merely gossip mongering and not a complaint protected by the law.

Channel for complaints
Third, the employee must submit his or her claim to the person authorised to deal with it in the workplace (eg, the head of human resources). An employee who complains in all directions at once will not be protected by the law.

Immunity
Fourth, the law protects an employee against being injured as a result of the complaint, but does not protect a justified measure against the employee that is unrelated to the complaint. For example, in Hazut, after the employee had submitted the complaint, his superior submitted many complaints against him. Not only was the labour court unimpressed by the merits of these complaints – against which the employee had not had a genuine opportunity to defend himself – but it also was under the impression that these complaints had resulted from the employee's complaint. Therefore, the labour court ruled that the complaints be removed from the employee's personnel file.

However, complaints made by a superior against a whistleblower may be justified. Clearly, submitting a complaint does not provide an employee with immunity against disciplinary measures taken in response to improper conduct on his or her part. In some cases, the superior's complaint against the employee may be motivated by a mixture of lawful and unlawful considerations. In order to receive the protection of the law, the employee need not prove that the injury that he or she incurred was caused only because of the employee's complaint – he or she is entitled to protection even if the complaint was one of several causes for the injury. However, the fact that the injury was also motivated by lawful considerations may be taken into consideration by the court in determining the remedies to which the injured employee is entitled. For example, if the employee's conduct contributed to his or her dismissal, he or she will probably not be reinstated, but may nevertheless be awarded damages.

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 (shoshanag@s-horowitz.co.il).

Endnotes

(1) Labour Appeal 48067-10-11.

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