Client Update Labour and Employment Department | Summary of 2017 in Employment Law and Trends Towards 2018
Dear Clients and Friends,
The field of employment law and employment relations is always active, and 2017 has been no exception. This past year has been characterized by frequent and challenging developments, both in legislation and in labour court rulings.
The many frequent developments in employment law require us to "keep our figure on the pulse" and accordingly, throughout the year we have provided you with ongoing updates regarding the material changes in legislation and important labour law rulings.
As a brief recap, the legislator has continued its tendency to match parental rights to the changing reality, and accordingly, maternity leave has been renamed Birth and Parenting Period, and the period for which employees are entitled to payment has been extended to 15 weeks. In addition, a male employees' entitlement to take a Birth and Parenting Period simultaneously with his partner has been increased, and such employee has been granted entitlements according to the Employment of Women Law, also where his partner is an independent worker; furthermore, working parents have been granted an entitlement to be absent from work due to their partners' reserve duty.
The Minimum Wage in the market has been updated to NIS 5,300 and it has been made possible to provide employees with electronic pay slips. Furthermore, a ruling was issued, regarding the method of calculation of severance pay for hourly employees.
The matter of privacy in the workplace has continued to keep us busy this year. The National Labour Court outlined its position regarding the use of biometric clocks, and the Protection of Privacy Authority issued guidance regarding the use of surveillance cameras in the workplace.
Despite many expectations, 2017 did not bring about the implementation of the reform regarding the length of the workday and workweek. A general Collective Bargaining Agreement was entered into at the beginning of the year; shortening the workweek in the market, and putting in place arrangements regarding work at night. Although there was an intention to extend the provisions of this Collective Bargaining Agreement by way of an extension order, the agreement has yet to enter into force.
Upon the conclusion of 2017, we have chosen to provide you with a summary of the main trends and significant developments which we witnessed this past year, on a number of topics in the field of employment law and employment relations, and which we expect will continue during this coming year:
Equal Opportunities at Work the advancement of rulings regarding the prohibition against discrimination, with an emphasis on norms and conduct that are expected of employers.
Harassment and Abuse in the Workplace legislation on this matter has yet to be passed, however, the Labour Courts continue to act in order to outline the claims for harassment and abuse in the workplace.
Sexual Harassment case law on the matter continues to evolve, with an emphasis on balancing between the parties involved.
Interference in Large Scale Termination Processes new rulings have laid the foundation to an increase in the authority of the Labour Courts, within a large scale termination process.
Hot off the Press legislative updates
We would be happy to assist and provide legal advice on any of the above topics, or any other matter, their implications on the workplace and the steps which are suggested to be taken as a result.
The Promotion of Equal Opportunities in the Workplace
Since the Labour Courts are highly occupied with the matter of discrimination and further due to the severity that is attributed to discriminating behavior, employers are required to implement, into their organizational decision making processes, an orderly discussion which takes into account the entire array of relevant aspects and considerations, prior to making any decisions.
This past year, the Labour Courts have continued to convey and develop guidelines regarding the prohibition against discrimination, by virtue of court rulings that emphasize the behavioral norms that are expected of employers and their responsibility to create a fair and equal working environment. Furthermore, the Labour Courts have continued to broaden the responsibility for violations of the Equal Opportunities in the Workplace Law, to actual users of services. Here are few examples from this past year:
Discrimination on Account of a Medical Disability: In the matter of Yossef Cohen,1 the National Labour Court ruled that an employer carries an increased burden to make accommodations, that will enable people with medical disabilities to continue their work, in cases in which such people have been employed in the same workplace for an extended period of time. The Labour Court emphasized that when a disabled employee has filled a certain position for an extended period of time, and has become disabled, or when an existing disability has deteriorated, during the employment relations, the employer is required to make reasonable accommodations, that will enable the employee to continue his/her work, not only by virtue of the Equal Opportunities in the Workplace Law, but also by virtue of the increased duty of good faith which applies within employment relations.
In the matter of Hananshvili,2 the Labour Court held that the employer's decision to force an unpaid leave of absence upon its employee, was tainted with discrimination on account of the employee's medical disability. The Labour Court insisted that in circumstances in which an employee is hurt in a workplace accident in a workplace for which he/she has been employed for an extended period of time, the employer bears a stricter and increased burden to make significant efforts to integrate the employee into the workplace. Under the circumstances, it was demonstrated that the employer did not make the necessary accommodations at the workplace, since, among other things, the employer did not consider the possibility of creating an alternative position for the employee, or enabling the employee to be aided by another employee in order to perform his position. The Labour Court awarded the employee compensation on account of his suffering, in the amount of NIS 40,000.3
Age Discrimination: In the matter of Dubek,4 the Labour Court held that within its redundancy and streamlining process, the employer's determining consideration, in deciding to terminate the employee's employment, was the fact that at the time, the employee was already legally entitled to retire and receive her pension. The Labour Court held that termination of employment for this reason is considered age discrimination. The ruling clarifies that although
1 Labour Appeal (National) 12264-10-13 Yossef Cohen Municipality of Tel Aviv Jaffa (Published in Nevo 21.8.2017) 2 Labour Appeal by Judge (Beer Sheva) 44108-03-15 Hananshvili Kopolak (1949) Ltd., (Published in Nevo 30.1.2017) 3 This ruling has been appealed to the National Labour Court 4 Labour Appeal by Judge (Tel Aviv) 36973-11-13 Rozenbaum Dubek Ltd., (Published in Nevo 28.9.2017)
redundancy and streamlining processes are within an employer's managerial discretion, the implementation of such processes imposes upon the employer a responsibility to consider additional considerations, in order to minimize any damage to the employees, including, carefully examining the specific consequences of forcing retirement on a certain employee, and the effect of such on the employee's accumulated pension entitlements. The Labour Court awarded the employee the maximal compensation, without proof of damages, in the amount of NIS 50,000.5
Service User Responsibility Towards Service Providers: In the matter of Almagor,6 the State was required to compensate the employee of a guarding services company, after it was demonstrated that a State employee offended her due to her being a woman, and belittled her due to her sexual preferences. The ruling emphasized that the State is subject to an intensified level of responsibility regarding equality in the workplace, even when it is operating as a services user. In this case, upon demonstrating that the manpower contractor was not a party to the behavior towards the employee, the State alone was obligated to compensate the employee. The Labour Court further noted that, had the employee claimed a higher amount of compensation, she would have been awarded such higher amount.7
The Labour Courts Continue to Give Substance to the Rulings Regarding Sexual Harassment
The matter of sexual harassment has received ample attention in the public eye this past year, due to, among other things, the well-known #Me_Too network campaign. The public discussion surrounding this matter will undoubtedly continue to echo during the coming year, and it clarifies the necessity to abide by the requirements of the Law for the Prevention of Sexual Harassment, and specifically, the employers' obligations therein. We would obviously, be happy to assist and consult on this matter.
On the legal side, the Labour Courts have continued to develop and strengthen their rulings regarding sexual harassment, while emphasizing the appropriate balance between the parties involved in the investigation of claims or in lawsuits revolving around sexual harassment:
The Labour Courts have broadened the responsibility of employers in examining rumors regarding sexual harassment, in order to protect the employees who are the subject of such rumors. Recently, the Labour Court was faced with the matter of an employee who approached his employer with a request that it examine a rumor, according to which the employee was behaving in a sexually harassing manner. 8The employer did not act to examine the rumors, and therefore, the employee approached the Labour Court. The Labour Court clarified that a manager is required to notify the Appointee for the Prevention of Sexual Harassment regarding every sexual harassment case which comes to his/her attention, whether such matter is supported by a complaint or merely by rumors. In this context, the Labour Court emphasized that an employer may be found liable due to its failure to fill its obligations according to the Prevention of Sexual Harassment Law, even if no sexual harassment was ultimately proven, in light of, among other things, the intensified level of trust in employment relations. The ruling broadens employers' responsibility to create a workplace environment safe from harassment, and clarifies that the obligations imposed upon employers by virtue of the Law for the Prevention of Sexual Harassment are intended, not only to protect employees who may be victims of
5 This ruling has been appealed to the National Labour Court 6 Labour Appeal by Judge (Tel Aviv) 52099-02-15 Almagor T&M Saar Security Ltd., (Published in Nevo 5.2.2017) 7 This ruling has been appealed to the National Labour Court 8 Labour Appeal by Judge 42650-06-14 Ploni Ta'avura Holdings Ltd., (Published in Nevo 12.2.2017)
harassment, but also, to protect employees whose reputation has been tarnished as a result of various rumors regarding their behaving in a sexually harassing manner.9
The Labour Courts have introduced additional tools to aid an accused employee in refuting claims of sexual harassment The National Labour Court10 was called upon to reach an adequate balance between the rights of the parties involved in a procedure revolving around sexual harassment. When faced with a request to examine the psychological records of an employee who filed a claim for compensation in accordance with the Prevention of Sexual Harassment Law, the Labour Court ruled that the defendant's right to a fair trial overpowers the suing employee's right to privacy. This ruling may enable defendants who are sued in accordance with the Law for the Prevention of Sexual Harassment to defend themselves against claims for compensation on account of emotional suffering caused to the harassed employee. However, it may also create a "cooling effect" which deters people who were harmed by sexual harassment, from turning to psychological treatment.
The Labour Courts have broadened the scope of their jurisdiction with respect to conflicts relating to sexual harassment The National Labour Court discussed the question of the Labour Courts' subject-matter jurisdiction to deliberate in compensation claims that stem from sexual harassment cases that constitute rape.11 This matter was discussed in light of a Supreme Court ruling has held that in tort claims revolving around rape, the jurisdiction is afforded to the civil court, while the Labour Court's jurisdiction is limited to deliberations on sexual harassment in accordance with the Prevention of Sexual Harassment Law.12 The National Labour Court insisted that sexual harassment, in accordance with the law, includes within it the full array of claims including those that are most severe, and therefore, the Labour Court has the authority to deliberate in all cases of sexual harassment in the workplace. The Labour Court further ruled that the employees' decision will determine the tier in which the claim is deliberated, since the employees have the right to choose between filing a tort claim with a civil court, or alternatively, filing a claim with the Labour Court in accordance with the Prevention of Sexual Harassment Law.
The Labour Courts insisted that not every sexually oriented expression shall constitute sexual harassment, and each expression should be examined within the relevant context In a recent ruling,13 the Regional Labour Court reiterated that the classification of a case as sexual harassment and the severity attributed thereto shall be derived from the nature of the relations between the parties, the location of the alleged occurrence and the entire set of circumstances. The Labour Court emphasized that a sexually oriented expression should not automatically be classified as sexual harassment, rather the wider context in which the expression was made should be examined. In this case, a student filed a claim for compensation on account of sexual harassment, following sexual expressions that were made by a lecturer
9 This ruling has been appealed to the National Labour Court 10 Appeal Request (National) 51232-09-17 Plonit Plonim (Published in Nevo, 24.10.2017). For the ruling in the Regional
Labour Court, see: LDJ (Tel Aviv) 53421-02-17 Plonit Lev Group Media Ltd., (Published in Nevo, 22.7.2017) 11 Labour Appeal (National) 22314-01-14 Plonit Almonit (Published in Nevo, 22.7.2017). The National Labour Court
discussed an appeal on the ruling by the Regional Labour Court in Beer Sheva, in which an employer was required to compensate a foreign worker who was employed thereby as a care therapist, without proof of damages, in an amount of NIS 300,000, on account of abuse and rape, as well as legal expenses in an amount of NIS 50,000. 12 Appeal Request 7146/13 Ploni Plonit and Others (Published in Nevo, 22.9.2014). 13 Labour Appeal by Judge (Nazereth) 8032-03-15 Plonit Ploni (Published in Nevo, 7.12.2017)
during a class. The Labour Court determined that the expression was made spontaneously and incidentally, in the scope of a discussion conducted in the class, without any specific intentions towards the student14.
The Labour Court does not recognize third parties' standing rights in Sexual Harassment cases The Labour Court dismissed in limine, a claim in accordance with the Prevention of Sexual Harassment Law, filed by the ex-husband of an employee, against the employer.15 It is apparent that the Labour Court views such claims, filed by third parties, in order to further their own personal agenda, as an abuse of the Prevention of Sexual Harassment Law, which should not be accommodated.
Is every confrontation a case of abuse? The Labour Courts continue to set the boundaries of the claim of abuse in employment relations
The pending bills on the matter of Preventing Abuse and Harassment in Employment Relations have yet to be passed, however, this has not prevented the Labour Courts from reaching decisions over the past year that have outlined the details of the claim for abuse and harassment in employment relations, and defined its boundaries. In light of developments with respect to causes of action regarding abuse and harassment, it is becoming tremendously important to take action to prevent, and handle cases of abuse and harassment in employment relations, and we would be happy to further advise on this matter.
Problematic working relations do not necessarily constitute workplace abuse In the matter of Yael Weiss,16 the Labour Court determined that the fact that the employer treated the employee in a strict manner, and not in the flexible way she treated the other employees, does not constitute workplace abuse, or harm the employee's dignity. The Labour Court emphasized that not every undesirable working relationship shall constitute abuse or harassment in the workplace. The Labour Court further stated that including the circumstances of this case within the definition of "workplace abuse" would stretch the definition unreasonably.
This ruling was given after, during the interim procedure, on which we reported last year, the Labour Court dismissed in limine a preliminary motion which requested the court to reject the cause of action that was raised by virtue of the pending bill for the Prevention of Abuse and Harassment in Employment Relations. Similarly, in the matter of Hodaia Sigalit,17 the Regional Labour Court determined the level of proof required in order to prove a claim of abuse. In this case, the Labour Court rejected the plaintiff's attempt to base the claim of abuse on a single occurrence, in which alleged inappropriate expressions were made towards her. The Labour Court ruled that claims of abuse are significant claims, which require details. In order to prove his/her claim, the plaintiff must demonstrate a sufficient and well-established factual foundation.
In the matter of Zanzori,18 the Labour Court factored in the employee's contribution to the creation of the offensive workplace environment. In this case, the Labour Court settled for granting the employee compensation in an amount of NIS 30,000, despite the significant and severe faults in the employer and the
14 This ruling has been appealed to the National Labour Court. 15 Labour Appeal by Judge (Tel Aviv) 35122-08-17 Ploni Plonit (Published in Nevo, 6.11.2017) 16 Labour Appeal by Judge (Tel Aviv) 53849-07-15 Weiss Rockonet Electronics Ltd., (Published in Nevo, 9.11.2017) 17 Labour Appeal by Judge (Tel Aviv) 65941-03-15 Sigalit S.A.G Mall Management Ltd., (Published in Nevo, 11.6.2017) 18 Labour Appeal by Judge (Haifa) 19809-02-13 Zanzuri Municipality of Acco (Published in Nevo, 19.3.2017)
appointed managers' conduct; due, in part, to the employee's contribution to the creation of the difficult workplace environment. Thus, in its decision, the Labour Court attributes improper conduct to both parties on the one hand, the Labour Court determined that the employer and the manager appointed by the employer, indeed behaved in a manipulative and aggressive manner towards the employee, however, on the other hand, the Labour Court determined that the employee herself had a role in the "witch-hunt" that was conducted against her. The Labour Court ruled that the employer violated its increased good faith obligation towards the employee, and therefore, required the employer to compensate the employee.19
The claim of abuse applies to relationships between employees and their employer, and not to relationships between employees The Labour Court continued its attempts to outline the claim of abuse in the matter of Ozan,20 in which a claim was filed against Bank Ha'Poalim and the bank's CEO. The Labour Court ordered that the claim against the CEO, for compensation due to abuse and harassment, should be dismissed in limine. Without referring to the facts of the case, the Labour Court ruled that insofar as there is a valid claim of offensive employment, it shall apply to the relations between an employee and its employer, and not to relations among the employees. In its decision, the Labour Court pointed at the concern in failing to dismiss the claim against the bank's CEO in limine; which would cause a situation in which, any manager or employee, who made a decision within the scope of their position, or who were in confrontation with another employee, would be personally exposed to a claim in the Labour Courts.
An increase in the authority and involvement of the Labour Courts in extensive termination processes and the possibility of plant closures
In the latter part of 2017, we witnessed a new and significant development, which is of great interest, regarding the Labour Court's authority to interfere in extensive termination processes, revolving around a potential plant closure.
In the matter of Negev Ceramics, the Regional Labour Court in Beer Sheva discussed a request made by the General Histadrut, to grant an injunction against the provision of hearing invitations to the plant's employees, prior to their termination, due to the intention to close the plant. In an interim decision dated October 2017, the Regional Labour Court ordered that the hearing invitations sent to the employees of the plant be cancelled, and further ordered a postponement in their terminations. The Labour Court ruled that, in principle, it has the authority to order the opening of the plant.21 Following such, in November 2017, after being convinced that the company's considerations for closing the plant were financial and appropriate, the Regional Labour Court reversed its decision and determined that the company was entitled to send the invitation letters to the
19 This ruling has been appealed to the National Labour Court. Similarly, Labour Appeal by Judge (Beer Sheva) 54214-03-12 Levi Municipality of Kiryat Gat (Published in Nevo, 3.5.2017), the Labour Court was convinces that the defendant abused the plaintiff, however, it ruled that the plaintiff's responsibility for the deterioration in the trust between the parties should not be reduced. The Labour Court only awarded compensation in the amount of NIS 10,000.
20 Labour Appeal by Judge (Beer Sheva) 46125-06-17 Ozan Bank Ha'Poalim Ltd., (Published in Nevo, 28.9.2017) 21 Collective Dispute (Beer Sheva) 17667-10-17 The New General Histadrut Negev Ceramics Ltd., (Published in Nevo,
employees.22 In the scope of an appeal which is currently being heard by the National Labour Court, attempts are being made to enable the continuation of the plant's activity and employment of its employees. 23
A similar discussion took place in the matter of Haifa Chemicals, in which the Regional Labour Court in Haifa examined the need to interfere in the company's decision to close its Northern plant, and terminate the employment of the 250 employees employed thereby. In this case as well, the Regional Labour Court thoroughly examined whether the decision to close the plant had a proper justification. Such examination took place amidst claims raised by the employee representation, whereby, the procedure was fictitious, and intended, among other things, to cause the elimination of the collective relations at the plant. Under the circumstances, and following many discussions, the Regional Labour Court rejected the motion for a temporary injunction against the intention to close the plant, after being satisfied that, on the face of it, the company's intention to close the operations at the plant was authentic and unrelated to the existence of the collective relations.24 The National Labour Court rejected a request to file an appeal on the decision.25 The main proceedings in this respect are still ongoing at the Regional Labour Court in Haifa.
These proceedings raise interesting questions regarding the boundaries of the Labour Courts' interference in employers' business and management considerations, including, the possibility of closing a workplace. It is still early to assess whether these decisions will lead to the Labour Courts showing an increased interference in employer decisions, which were thus far considered in the core of the employers' managerial prerogative. We will continue to closely monitor any developments and update you on this matter during this year.
Before concluding our update, here is some "Hot of the Press" legislative news
- Towards the end of 2017, the legislator approved the Retirement Age Law (Parent whose child has passed away) (Temporary Order), 5778-2017. The law determines that the mandatory retirement age, for an employee who is a parent and whose child passed away, shall be the mandatory retirement age (67) with an additional 4 years, meaning age 71, on the assumption that the continuation of work may assist the parent to continue their routine, despite their tragedy. The law will only apply to employees who have been employed in the same workplace for at least seven years immediately prior to reaching the mandatory retirement age, and to employers with at least 25 employees. The law has been defined as a temporary order for a period of four years, and entered into force on January 1, 2018.
- The Hours of Work and Rest Law (Amendment No. 16), 5778-2017 was also approved towards the end of 2017. This amendment has broadened the list of considerations that the Minister of Labour and Social Affairs (the "Minister") may consider, upon receiving a request to grant a permit to work on the weekly rest days. In addition to the existing considerations, which primarily revolved around state security and financial needs, there is now a list of new considerations, which are ultimately intended to limit the Minister's
22 Collective Dispute (Beer Sheva) 17667-10-17 The New General Histadrut Negev Ceramics Ltd., (Published in Nevo, 21.11.2017)
23 Appeal on Collective Dispute (National) 59225-11-17 The New General Histadrut Negev Ceramics Ltd., (Published in Nevo, 5.12.2017)
24 Collective Dispute (Haifa) 50931-08-17 Democratic Organization - Power to the Employees Haifa Chemicals Ltd., (Published in Nevo, 7.11.2017)
25 Request for Appeal (National) 33153-11-17 Democratic Organization - Power to the Employees Haifa Chemicals Ltd., (Published in Nevo, 31.12.2017)
discretion, in granting a permit. The new considerations include the following: the employee's welfare, Israeli traditions, the existence of an alternative which will not require the employment of employees on the weekly rest, the influence that such a permit will have on the nature of the public sector in which such work will be performed and with respect to which the permit has been requested, and any other consideration that would fulfill the purpose of the law. To our understanding, the purpose of the amendment is to limit the Minister's discretion when examining a request for a permit to work on the weekly rest days.