Many employers must face the “Hearing Illness,” that mysterious illness that visits upon employees immediately after they are given a letter summoning them to a hearing.

Recently, the Tel Aviv Regional Labor Court handed down a judgment whereby the court considered the conduct of an employee after a hearing was held in her regard. The court held that the conduct of the employee, who took advantage of her sick leave as vacation days warranted the denial of severance pay and early notice payments, and even the refunding of money to the employer for the sick days paid to the employee (a remedy that was not sought by the employer.)

The interaction of the hearing rules and the sick leave statute (which prohibits the termination of an ill employee) creates a loophole that enables many employees to be absent at the expense of their sick leave and thus to delay the hearing or the rendering of a decision after it.

In the case above, the employee was summoned to a hearing after which she was absent for two months due to illness and produced several sick notes from several different physicians. In conjunction, the employee posted to her Facebook account photographs from vacations and trips, as well as a photograph in which she appeared bungee jumping.

The Labor Court ruled in this context that the “intolerable lightness in which sick notes are issued is a wrongful phenomenon,” and that the cost of such ease is shouldered ultimately by employers. The employee’s conduct, who was warned at her hearing not to use her sick leave days as vacation days, was heavily criticized in the judgment.

The judgment reflects the criticism expressed by many employers in the market who must fact the exploitation of the duty (and right) to holding a hearing and in this sense is an anomaly in the jurisprudential landscape. At the same time, one must remember that the facts underlying this judgment are unusual and thus it cannot be analogized to conclude that in every case of doubt as to the veracity of the sick notes it is possible to avoid paying the employee for sick days.