On September 6, 2022, Israel’s National Labor Court (NLC) partially accepted an appeal by a former public hospital employee over a decision by the Nazareth Regional Labor Court and quintupled the amount awarded to him as compensation for “abuse at work” (occupational harassment). (Lab.App. 21934-02-21 Hakmon v. State of Israel.)
The NLC is authorized to entertain appeals over decisions of regional labor courts in accordance with the Labor Court Law, 5729-1969, as amended.
Facts of the Case
The appellant worked in a public hospital for about 20 years until his early retirement in 2012. During his employment he served as a member and treasurer of the employees’ union and represented employees before the hospital’s management, including in committees of inquiry and pre-dismissal hearings. He also took part in handling employees’ complaints against management, including transferring such complaints to the Civil Service Commission (CSC).
In 2010, the appellant filed a complaint at the CSC against the hospital’s administrative director because the director refused to recognize him as a union representative. Subsequently, the director filed a personal libel suit against the appellant, which was dismissed on the condition that the appellant send the director a letter of apology and take early retirement. The letter of apology had been drafted by the director’s counsel and forwarded to the appellant by an attorney from the CSC’s disciplinary division. A disciplinary case against the appellant at the CSC was also closed shortly after the approval of the appellant’s early retirement.
In 2013, a year following his retirement, the appellant filed a request with the Ministry of Health, the hospital, and the CSC that he be reinstated at his job and receive compensation for unlawful termination. He argued that he had been forced to “agree” to the termination of his employment and that the pressure on him was a direct result of his union’s activities and as revenge for the complaints he filed. When his claims were rejected he sued at the regional court.
The regional court rejected the appellant’s claim for reinstatement at his job but awarded him compensation in the amount of 60,000 new Israeli shekels (NIS) (about US$17,166) “for harassment or compensation for mental anguish.” The court held that there were exceptional circumstances that justified this relief even though it was not explicitly requested. Among the circumstances were the disregarding of the appellant’s scheduling requests in contrast with the practice followed with other employees whereby the appellant’s was removed from morning shifts and placed only on evening shifts without his consent. Other exceptional circumstances according to the court included the downgrading of the appellant’s position and splitting it into several positions, and the tying of the retraction of the director’s personal libel suit to the appellant’s consent to early retirement.
The appeal centered on the regional court’s rejection of the appellant’s claim for reinstatement and compensation for unlawful termination, and on the amount awarded to him for occupational harassment.
Applicable Law
Occupational harassment is not regulated by statutory law but has been the subject of several bills because of its severe consequences on employers and employees alike. The latest private member bill addressing occupational harassment was submitted on February 7, 2022. The 2022 bill prohibits the “repetitive behavior towards a person, on several separate occasions, that can create a hostile environment for that person at work.”
Among behaviors that may constitute “abuse at work” under the 2022 bill are degrading or violating the terms of employment of a person for irrelevant reasons; disrupting a person’s ability to perform their duties; subjecting a person to an atmosphere of fear and threats; attributing a person’s work, achievements, and successes to another person, or attributing to a person failures of another; and isolating a person professionally or socially.
Although no legislation on the topic has been adopted yet, Israeli labor courts have addressed occupational harassment within the framework of existing law, basing their decisions on the obligations of good faith and fairness to which each employer is obligated as an integral part of the employment contract. The determination of whether occupational harassment exists, the courts have opined, should be based on findings of fact and the specific circumstances of each case. In examining relevant cases courts have been guided by the following principles:
It is therefore necessary that the behavior also constitute abuse under an objective test, and a subjective feeling of harm is not enough. Criteria for the objective test have not yet been formulated, and it can be assumed that they will be based, inter alia, on standards of proportionality, reasonableness, and relevance; on the extent of deviation from organizational and social norms; and the obligation to provide the employee with a proper and respectful work environment in which there is no humiliation or violation of dignity, all while maintaining the delicate fabric of relations in the workplace, without creating “over-judgment,” and while being balanced against the ability of the employer or a supervisor on the employer’s behalf to manage what needs to be managed. (Lab.App. 21934-02-21 para. 40.)
National Labor Court Verdict
The NLC found that the regional court’s factual determinations showed that the state had used its managerial authority unfairly to silence and exclude the appellant as an employee and board member. The NLC also found that there had been an attempt to damage the appellant’s good name and status, while exerting economic, employment, and social pressure on him. The sequence of behaviors proven to the NLC, each of which separately constitutes abuse at work, and their accumulation together convinced the NLC that there had been a grave breach of the duty of good faith in the contractual relationship between the state as an employer and the appellant. Considering that the employer in this case was a public body, the duty of good faith was even more elevated, the NLC noted.
The filing of a personal libel suit by the appellant’s supervisor to pressure the appellant to leave similarly became part of the occupational harassment for which the state was responsible, and this is especially true when the CSC was aware of the pressure and cooperated with it.
With regard to the appropriate remedies, the NLC rejected the request for reinstatement in the job considering that 10 years have passed since the appellant retired and he has received retirement benefits. The NLC held, however, that
[i]n our case, the employer is the State of Israel, that is, a clearly public body whose obligations of good faith and fairness are elevated; the harassment of the appellant spanned a considerable period of time and a number of cumulative channels as detailed above, including blatant and prohibited interference in the conduct of the workers’ committee; the main person responsible for the mistreatment is a senior official in the government hospital who exercised administrative powers over the appellant without other parties contacted by the appellant at the time stopping it; and the mental anguish caused to the appellant is significant and evident. It should be added that, in accordance with our determination above, the harassment also affected the appellant’s consent to early retirement, with all that entails from his point of view, including financially throughout the years following his retirement. (Para. 57.)
The NLC concluded that the compensation to the appellant in the circumstances of the case should be set at NIS300,000 (about US$85,168), reflecting the NLC’s conviction that the circumstances of the case were particularly grave and justified significant relief. The NLC explained that the compensation was mainly for the nonpecuniary component of the case, but also took into account the economic consequences of retirement and the need to establish a deterrent to similar behavior in the future.
Ruth Levush, Law Library of Congress
November 29, 2022
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