Shabbat Parashat Vayeitzei |5770

P’ninat Mishpat: Firing Teachers – part I

(based on Eit Ladun – Rav Nir Vargon - Halacha Psuka, vol. 31)

The gemara (Bava Batra 21a) deals with a case where a better Torah teacher than the present one is found: “One who teaches Torah to children, but there is one who teaches better than he, he is not removed, lest he be negligent. Rav Dimi from Naharda’a said: all the more so that he will teach better, for the jealousy among scholars increases wisdom.” Rashi explains that the first opinion’s concern about negligence is based on the assumption that the newly appointed teacher will be so confident about his security that he will not dedicate himself sufficiently. The second opinion posits that since he replaced someone, the new teacher will be nervous that the removed teacher might embarrass him if he fails to do the job properly.

The Rosh (Bava Metzia 2:9) rules like Rav Dimi that the first teacher may be removed if a better alternative is found, and the Shulchan Aruch (Choshen Mishpat, Yoreh Deah 245:18) says that this is so even if he was not negligent in any way.

The Aruch Hashulchan (YD 245:19) and Chazon Ish (Bava Kama 23:2) understand that the firing in discussion is within the time of the employment agreement. If the contract had already expired, there would be no reason for anyone to require the employer to extend the agreement. Under this assumption, the Aruch Hashulchan found it odd that the teacher could be fired and have the moneys promised to him withheld without his having done anything wrong. He answers that indeed, if he would be fired under those circumstances, the employer would have to pay him for the entire time of the agreement as a po’el batel (i.e., we would deduct from the full salary the amount that it is worth for him to be on vacation). The permission to fire the teacher relates to removing him from the job, which is not allowed regarding other kinds of workers just to replace them with more qualified workers.

However, the Rosh (Shut 104:4) contradicts these Acharonim. He says that the teacher could not be removed without fault during the period of the employment agreement. The problem is that the Rosh in his p’sakim says that he can be fired. The Aruch Hashulchan and the Chazon Ish apparently preferred the latter source as the basis of the halacha.

Rav Yitzchak Kolitz (the late chief rabbi of Yerushalayim) says that the teacher has two statuses: as an employee and as a teacher. The gemara is talking about a case where the employment period is over and thus his status as an employee is over without the need to justify lack of rehiring. Only regarding his status as a teacher is there a need for a reason to not continue the employment, but when there is a benefit in hiring someone else, this may be done (see Shurat Hadin IX, p. 386 and on). This is in contrast to the Aruch Hashulchan’s approach that after the end of the employment period, the employer has no obligation of any sort to continue employing the teacher.

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