Shabbat Parashat Tetzaveh| 5767
Grounds for Denying Severance Pay - Based on Halacha Psuka’s Condensation of Piskei Din Yerushalayim - vol. II, pp. 205-208)
Case: The plaintiff (=pl) worked in the defendant’s (=def) store. Def ended pl’s employment during an angry phone conversation, and pl is now demanding severance pay. Although pl worked under a contract, there was tension regarding the issue of raising the salary, which was pending arbitration. Pl was entitled to buy items sold in the store at a 20% discount. He admits taking, at times, merchandise without paying but claims that this was done with permission from def’s wife and with an intention to pay later. Pl claims that def had not yet demanded him to pay until their financial disputes were settled. Def claims that he only recently found out that the items had been taken. Pl also would not infrequently show up to work late. Def feels that pl was rightfully let go because of his thievery and erratic work ethic and, thus, does not deserve severance pay.
Ruling: We must first determine whether or not pl was guilty of theft by taking merchandise from the store without paying for it. The Shulchan Aruch (Choshen Mishpat 364:2) describes scenarios that are deemed theft. One who enters another’s house in his absence and takes objects, even in an open manner, is not believed that he had permission or that he bought the objects. Rather, when one takes items from another’s possession, he is under the presumption of stealing unless proven otherwise. However, the Netivot Hamishpat (137:1) explains that the presumption of thievery is based on the fact that he entered another’s home without permission and took from its contents. In our case, in contrast, the objects were slated for sale, and pl took them in a manner which was consistent with his claim that he intended to pay. Therefore, we have no grounds to label the taking of the items as theft.
Def claims that he had no intention to let pl take items without paying for an extended period of time. However, pl’sclaim that he originally intended to pay after a short time is credible, and that would have been acceptable. Therefore, when he took the items, it was permissible, and the sales price became a chov (financial debt). Being late on paying a debt is not tantamount to stealing.
Let us now investigate the matter of coming late. The Chavot Yair (106) discusses cases where an employee or an employer wants to end the work relationship because of dissatisfaction. One of the examples he gives is when the worker arrived late more than once. Yet, the Chavot Yair writes that he would never let such claims be grounds for ending the employment but would find some sort of understanding between them.
Thus, we do not find grounds for def to fire pl and be exempt from severance pay. However, due to pl’s part inthe general picture of a poor employer/employee relationship, we can understand why def wanted to let pl go. Therefore, it is appropriate to work out a compromise regarding severance pay.
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