Better Late Than Never-Have you Heard of a Belated Hearing?

March 9, 2019
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The article was published in Afik News 278 13.03.2019

In recent years there has been a significant case law development in connection with the obligation to hold a pre-dismissal hearing in the private labor law sector. The high compensation awarded for failure to hold a hearing led to a situation in which employers are well aware of their duty. At the same time, this awareness does not always lead to a reality that is consistent with the case law. What happens in circumstances where an employee was terminated without a hearing? Does that mean that the employer must wait patiently to see whether the employee will file a claim or can a hearing be held in hindsight?
The Courts in Israel held that the right to be heard is a basic right, given a place of honor when an employer considers terminating an employee. The purpose of the right is to make an informed decision regarding the termination, 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 the right to be heard under such circumstances 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 employment.
At the same time, it is important to know even if an employee is terminated without a hearing it is not necessarily the end of the story. Case law provides that a wrongful termination without a hearing can be cured by means of a belated hearing, subject to the hearing being done in good faith, with the desire and willingness to reconsider the decision. In that respect, in February, 2019, the Labor Court in Beer-Sheva discussed the case of an employee who received notice of termination by an officer of a company that was not even authorized to dismiss him. An authentic summons for a belated hearing was sent to the employee by the supervisor in the company, who is authorized to dismiss him. The Labor Court held that the dismissal notice did not create an irreversible situation as the employee had not yet changed his situation for the worse and was not harmed because between the notice of termination and the summons to the belated hearing the employee was in a period of work incapacity at home. In the same case, the employee did not give the company the possibility of holding the belated hearing and therefore the Labor Court rejected the employee’s demand for compensation. At the same time, there is no dispute that had the employee allowed the belated hearing to take place, it is certain that he would have had no claim of not being heard, and the company might have decided to continue his employment.
The issue of terminating employment is a complex issue that is constantly changing and it thus is important to receive ongoing advice from lawyers with experience in the field to ensure that things are duly made, while paying attention to the circumstances in which defects can be corrected in real time.