Shabbat Parashat Vayishlach 5783

P'ninat Mishpat: Is Continuing to Work in a Different Capacity Like Being Fired?

Case: The plaintiff (=pl) worked for a vocational yeshiva (=def) since 2019, working his way up to teacher/director. Tensions arose between pl and the rosh yeshiva (ry), due to which pl stopped working in Dec. 2021. During beit din proceedings, def offered pl to return to a lower-level position, with less contact with ry, at his regular salary; pl rejected the offer. The sides disagree on how to legally view various points. Def considers the end of work as pl quitting, whereas pl claims he was fired. Pl did not have an Education Ministry funded position as a teacher but is an independent worker, like others in the yeshiva. Therefore it is disputed whether he can be fired in the middle of a school year.

Ruling: According to the majority of dayanim, since the two sides had agreed (and it appeared as such on his pay stub) that pl did not have a position as a teacher, he is not protected by the government-recognized agreement not to fire teachers in the middle of the year. Although the sides agreed that pl’s general work conditions are like a teacher and that he would work for a full year, def have the right to switch his job, which one cannot do for a teacher. From analysis of def’s words during the hearing, it is clear that they initiated pl’s removal, and therefore they are considered to having fired him.

Even though def was able to fire pl, since it was in the midst of an employment period of a year, they have to continue paying until the end of the period (Bava Metzia 76b). However, the employer does not necessarily have to pay in full when we can assume that the worker benefits from the time off (ibid.). A standard amount to reduce the salary in such a case is 50% (Taz, Choshen Mishpat 333:2). However, this is just a point of departure, and it is affected by factors such as the positive impact of activity on the body (see Bava Metzia 77a and Rambam, Sechirut 9:7). The Rosh (Bava Metzia 6:3) rules that teachers should not get a reduction for time off because idleness causes forgetfulness and “heavy limbs.” The Rama (Shut 50) distinguishes between different types of teachers. In our days, it is possible to receive some guidance from the fact that Bituach Leumi and insurance companies give those who are prevented from working 75% of their salary, which is what we will do here.

One who is hired for one task cannot simply force to do a different task for his employer (Tosefta, Bava Metzia 7:5), even if the latter is not harder work (Ritva, BM 77a). This is because worker satisfaction is part of the formula. However, when the intended work becomes unfeasible (including due to employer dissatisfaction with the worker’s skill - Aruch Hashulchan, CM 335:1), the employer can reassign the worker (Shulchan Aruch, CM 335:1). In this case, all agree that pl could not work with ry, and pl’s “solution” that def fire ry is not to be taken seriously in this context. Therefore, from the time that pl rejected def’s offer to receive pay for other responsibilities, pl is no longer entitled to pay.

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