Shabbat Parashat Bamidbar 5781

P'ninat Mishpat: Firing during Maternity Leave

Case: The plaintiff (=pl) worked as a reservations secretary for the defendant (=def) for 6.5 months, on an hourly basis for a monthly average of 3,580 NIS, until giving birth on 4/7/18. On 13/9/18, during maternity leave, def’s representative visited pl and informed her that the branch in her city was closing and that she would therefore (not for personal reasons) not be taken back to work after maternity leave. Pl has yet, several months later, to find a job. Pl is suing for various benefits due to her by law that were violated: 1. One cannot fire a worker during maternity leave and the 60 days thereafter – 60 days’ salary plus penalties = 10,740 NIS; 2. Lack of notice (when permitted to fire) – 13 days X 165 NIS = 2,145 NIS; 3. Lack of hearing to appeal decision – 3,580 NIS; 4. Severance pay – had pl been allowed to come back to work, she would have completed a year’s work, entitling her to a month’s severance pay = 3,580 NIS; 5. Holiday pay – 330 NIS; 6. Pension-fund contribution – 1,861 NIS; 7. Unused vacation days – 1,650 NIS; 8. Recreation payment – 1,575 NIS. 9. Failure to inform worker of rights – 7,500 NIS. Def responded that they are happy to give any funds that are outstanding, but that since the firing was a necessary consequence of restructuring, they did nothing to ignore pl’s rights.

Ruling: In several rulings of the Eretz Hemdah-Gazit batei din network, we have explained why, as a rule, we accept the employment laws, as the law of the land, legislated to improve society. This includes the law that forbids firing a woman during and immediately after maternity leave.

No distinction is made regarding the motivation for the firing unless the employer is in a severe economic state, which can be grounds to obtain a waiver. Therefore, pl deserves 60 days’ salary. In general, when one’s employment was wrongfully terminated, Halacha reduces from the salary due to the benefit of free time the worker now has (Bava Metzia 31b). In this case, we award pl full salary because the law is not just to compensate but to deter non-compliance. While pl demanded to add a penalty, as the law prescribes, we do not feel it is appropriate when the rationale of the firing was not discriminatory (see rulings 73122 and 76005). Therefore, pl will receive 7,160 NIS for #1 and 2,145 for #2.

#3 – There is no formal legal or halachic requirement to give an employee the right of appeal. While there is such an accepted practice, in cases like this, where we would not expect that pl could have said something “to her defense” to change anything, this payment is not appropriate. #4 – Pl deserves severance pay as if she was allowed to finish her tenure. #5 – claim accepted. #6 – the necessary pension compensation was accepted and recalculated by beit din. #7 – claim accepted. #8 – claim accepted. #9 – failure to inform of rights – this is accepted partially. There is no reason to believe that knowing her legal rights would have changed the picture here. However, the law demands this norm to be implemented, and therefore a penalty of 1,000 NIS is appropriate.

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