Failed to hold a hearing before terminating an employee? It might still be OK

August 25, 2018
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The article was published in Afik News 264 29.08.2018

In recent years more and more verdicts ordered employers to compensate employees on the ground that no legal hearing has been held before deciding to terminate their employment. Despite the high awareness among employers regarding the obligation to hold a hearing, many employers still fail to do so. But does the failure to hold a hearing always entitle an employee to compensation? An innovative holding on the matter undermines the answer that until such case was quite clear.
The Courts held that the right to be heard is a basic right, which is given a place of honor when an employer considers terminating an employee’s employment. The purpose of that right is to make an informed decision regarding the termination of an employee’s employment, all while paying attention and consideration to the employee’s positions, because the employee may indeed have good answers to the arguments raised – answers that may change the employer’s position. Employers who did not grant an employee a right to be heard in such a situation find themselves exposed to lawsuits and are often subject to pay a material compensation, taking into consideration the circumstances of the case and the period of the employee’s employment.
However, in June, 2018, the Labor Court of Nazareth issued an innovative case law. In that case, an employee was called for a conversation, in which the employer shared with her his intention to employ someone else in lieu of the employee, thus effectively terminating her employment without saying so explicitly. Later in the conversation, the employee started cursing the employer using words that deeply hurt him. The Labor Court held that although the employer did not duly hold a hearing, it is highly doubtful whether a hearing would have led to a change in the employer’s mind after the employee cursed him the way she did.
Although this is a specific case, there is logic in such caselaw and perhaps a new and refreshing direction in the holdings of the Labor Courts. The actual meaning of this holding is that, in extreme circumstances, the employer cannot be expected to reconsider his position regarding the employee’s termination of employment, and therefore there is nothing in the hearing other than an eye-wash and so the hearing is not really required. In such circumstances, there is no justification for awarding compensation to the employee in the absence of a hearing. This is an out-of-the-ordinary case law regarding the duty of hearing and it will be interesting to see whether this is the beginning of a novel and correct trend or a one-time holding.
We reiterate that the issue of employing employees in general and terminating their employment in particular is a complex issue and it is important to receive ongoing advice from lawyers who are experienced in the field to ensure that things are duly done and do not create any exposure to the employer.