Shabbat Parashat Acharei Mot Kedoshim 5781

P'ninat Mishpat: Promotion that Didn’t Fully Happen

Case: The plaintiff (=pl) worked in security in a yishuv (=def) as a scout, working under the ravshatz (head of security), and he was paid hourly without social benefits. On Sept. 27, 2019, the ravshatz informed him that he would receive the post of assistant ravshatz and would receive a set monthly salary of 1,500 NIS. In Oct. 2019, the ravshatz told pl to start recording his hours of work that the ravshatz gave him to be paid hourly and told him that after he did an army course (necessary for the new job, which includes taking over for the ravshatz when he is away), he would get the rest of his salary retroactively. The course was repeatedly canceled due to Corona. In June 2020, pl, the ravshatz, and the mazkir (administrator) of def met to sign a contract, at which time pl asked to be paid retroactively since Sept. The ravshatz refused because pl did not carry out all that an assistant ravshatz does, and the contract was not signed. Pl demands his full salary retroactively, as he did everything he was asked to do since he received the new job. Def responds that since he has not been doing the full job of an assistant ravshatz and he accepted the hourly rate payment, that is what he deserves until he takes on all of an assistant ravshatz’s responsibilities.

Ruling: While pl is formally employed by def, it is clear from the accounts of all that the ravshatz is the person who is authorized to set the work agreements of all who work under him. An oral agreement is sufficient to create obligations to a worker, as long as an act of kinyan was performed. The most common act of kinyan regarding employment is the worker’s beginning to work (Shulchan Aruch, Choshen Mishpat 333:1). So when a worker begins to work after an oral agreement, it is as if there was a written contract.

The ravshatz admits that he told pl that he would be paid a set salary of 1,500 NIS a month. This was agreed in Sept. 2019 and repeated in a WhatsApp in Jan. 2020. After these agreements, pl worked; therefore the agreement is binding.

We do not accept def’s claim that pl does not deserve the salary promised because he did not carry out all of the responsibilities for which he was hired. In this type of job, the work is defined not by the number of hours one worked in practice, but by his carrying out the tasks he is given. It is the employer’s responsibility to assign the tasks. If the worker refuses, he can be fired or the agreement can be renegotiated. However, an employer cannot take away from the salary for not performing tasks that he was never assigned.

It is also not relevant that pl accepted hourly payment. Since he was told that the salary would be added to, in no way was temporarily accepting less a relinquishing of rights.

Therefore, def is to pay the additional sum needed to bring pl’s earnings to 1,500 NIS starting from late Sept. 2019.

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