Shabbat Parashat Sukkot 5781

P'ninat Mishpat: Questionable Firing and its Financial Implications – part II

Case: The plaintiff (=pl) began working in 2009 for the defendant (=def), an informal education organization, as the director of its midrasha, which runs educational tours for students. Pl was very successful for close to two years in his main task, expanding the midrasha’s reach. Def was unwilling to pay pl a set salary due to uncertainty about resources, and so pl agreed to a salary of 50% of net profits from the midrasha’s operations plus a set rate for tours he led. In 2011, the midrasha began receiving funding from the Education Ministry. This affected pl’s salary in two ways: He could no longer lead tours due to lack of a degree; the cost of tour leaders with degrees was higher, which lowered the net profits that made up his salary. Tensions between the sides grew over pl’s demands to rework his salary and complaints about how the process of joining up with the Education Ministry was done. A few months later, def fired pl (there were several months left on their contract). Pl demands payment until the contract’s completion, severance pay, and penalties for late payment (he received salary only after groups paid). Def respond that the firing was justified because pl began to disregard orders and was often unavailable (he began university studies). They point out that the contract states that pl waives severance pay and that, in any case, he was not a salaried work. They countersued for having overpaid, as they did not factor in certain expenses when determining the net profits.

Ruling: [Last time we saw that pl has grounds for severance pay.]

Validity of the firing – the employment contract states that pl can be fired for ineffective work. In the first period of his employment, pl provided exactly what had been hoped for – major expansion of the scope of the midrasha’s operation. Are there now shortcomings that justify firing? We will deal with claims one by one.

1) Pl received payment from groups instead of having it sent to the office – Def did not claim that pl took the money for himself or hide it. Therefore, this is not grounds for firing.

2) Pl’s demand for a change of mode of salary as a condition for work – Pl had good reason to want to change his basis of salary due to the change involving the Education Ministry. If pl had quit on these grounds, it would have been considered the equivalent of being fired. However, he did not have a right to demand the change and continue working.

3) Lack of availability – Pl began attending university during the period of his employment, and this made him insufficiently available. According to def’s secretary’s testimony, that caused problems, including that pl would call her at home, to which she objected. Even pl’s witness agreed that during major parts of the day, pl was unavailable.

4) Pl interfered with the attempt to be recognized by the Education Ministry – this was not sufficiently proven. We note that they received recognition even though it made things harder for pl.

Conclusion: Tension and difficulty in joint work arose, largely due to the change that occurred. Even if pl were not to blame for the deterioration, def still has the right to move on. Pl’s claim that he was fired to deprive him of his share in upcoming large revenues, while possibly a factor, was not proven.

We will continue next time with other elements of the dispute.

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