Section 23 of the Discharged Soldiers Law states that "every decision and every order of the Employment Committee may be appealed to a regional labor court within the meaning of the Labor Court Law, 5729-1969...". It should be noted that the section was amended in 1969 with the establishment of the labor court system, and that prior to that the right of appeal was before an appeals committee that was appointed in accordance with the method of appointing the employment committee, headed by a district court judge. In accordance with Section 24 of the Discharged Soldiers Law, "a regional court may reject the appeal or cancel the decision or order that is being appealed, and decide any decision and issue any order that the Employment Committee is authorized to issue." [As to the scope of theFor judicial review of the Employment Committee's decision, see: Labor Appeal (National) 268-07 Igor Rubinstein - Sela Movers in a Tax Appeal [published in Nevo] (September 11, 2008); Labor Appeal (National) 300116-98 Moshe Savyon - Creative Games in a Tax Appeal [Published in Nevo] (April 3, 2005)].
- Section 30 of the Discharged Soldiers Law – which bears the marginal heading "Jurisdiction of the Court" – reads as follows:
"No person shall be prosecuted in court, whether in civil or criminal law, in connection with any duty imposed on him by this law, except in cases expressly permitted by this law or in the regulations enacted pursuant thereto."
- In the present case, the question arises whether a claim by a prison guard by virtue of discharged soldiers was heard by the Employment Committee, in light of the provision of section 21 together with section 30 of the Discharged Soldiers Law, or in the Court for Administrative Affairs, in view of the provision of section 129 of the Prison Services Ordinance together with item 37(2) of the first addendum to the Administrative Courts Law.
Employment Committee Decision
- As stated, the appellant submitted his claim by virtue of the Discharged Soldiers Law to the Employment Committee. The state submitted a motion for summary dismissal to the committee on the grounds that the Employment Committee has no substantive jurisdiction to hear the claim and that the competent court to hear it is the District Court, sitting as the Court for Administrative Affairs.
- In a decision dated November 26, 2018, the Employment Committee rejected the state's request for summary dismissal, for the following reasons:
- The Court for Administrative Affairs is not authorized to hear a monetary claim concerning a violation of the Discharged Soldiers Law (in light of section 30 of that law) or any monetary claim that is not listed in the third appendix to the Administrative Courts Law, 5760-2000 (hereinafter: the Administrative Courts Law).
- The ruling of the High Court of Justice 1214/97 Halamish v. The National Labor Court [published in Nevo] (May 3, 1999) (hereinafter: the Halamish High Court of Justice) was accepted in case law only in cases where the legal dispute is identical to that heard in the Halamish High Court case. Therefore, the state's argument that even when we are dealing with provisions of the law that grant unique authority to the Labor Court, they should withdraw in the face of section 129(a) of the Prisons Ordinance (New Version), 5732-1971 (hereinafter: the Prisons Ordinance), was not accepted in the case law.
- The authority of the Labor Court to hear appeals against the decisions of the Employment Committee is found in section 24(a)(5) of the Labor Court Law, 5729-1969 (hereinafter: the Labor Court Law). Hence, section 129(a) of the Prisons Ordinance does not negate the authority of the Employment Committee to hear the appellant's claim.
- The explanatory notes to the bill regarding section 129(a) of the Prisons Ordinance negate the state's position. Moreover, the powers of the Employment Committee originally included the authority to order monetary compensation as well as the power to order an injunction, and they existed at the time of the enactment of the amendment to the Prisons Ordinance.
- The claim filed by the appellant is a monetary claim after a possible act, the cancellation of which is not required. The appellant is claiming only monetary compensation for it.
- In the event of a violation of the Discharged Soldiers Law, the legislature has spoken clearly and established a unique procedure before the Employment Committee. The legislature sought to concentrate all the powers, whether in direct or indirect attack, before the Employment Committee, to the point of establishing an armored provision set forth in section 30 of the Discharged Soldiers Law.
- The state appealed the decision of the Employment Committee to the Regional Labor Court, as stated in section 23 of the Discharged Soldiers Law.
The Regional Court's Judgment
- The state argued in its appeal that in accordance with section 129(a) of the Prisons Ordinance, the question of the dismissal of a prison guard, regardless of the reason for the dismissal, will not be considered as a claim stemming from an employee-employer relationship for the purposes of section 24 of the Labor Court Law. Therefore, the hearing of it is not under the jurisdiction of the Labor Court, but rather with the authority of the Court for Administrative Affairs, by virtue of the provision of section 5 of the Administrative Courts Law, together with section 37 of the first addendum to that law. The test is not what is the specific cause of action underlying the exercise of the authority relating to the status of a prison guard, whether it derives from the Equal Rights for Persons with Disabilities Law, 5758-1998, or the Discharged Soldiers Law or any other specific law that grants substantive authority to the Labor Court or the Employment Committee or any other instance – but rather whether the action is intended to object to the exercise of the power relating to the status of a prison guard as detailed in section 129(a) to the Prisons Ordinance. If the answer is yes, the claim will be heard in the District Court sitting as the Court for Administrative Affairs. The legislature did not intend to deprive only the Labor Court of the authority to hear matters relating to section 129(a) of the Prisons Ordinance, but also of other courts whose composition is similar to that of the Labor Court and which are dealing with issues of discharge from service. The state further argued that only after the Administrative Affairs Court conducts judicial review of the decision to dismiss a prison guard and determines that his dismissal was unlawful, will the Labor Court have the authority to award compensation to the prison guard. The same is true of the Employment Committee, whose authority to award compensation to a prison guard will be established only after the Court for Administrative Affairs conducts judicial review of the decision to dismiss the prison guard and determines that he was dismissed for going out for reserve duty. Although the appellant does not seek to cancel the administrative decision ordering his dismissal from service in the IPS, however, according to the state, there is no dispute that for the purpose of discussing the financial relief requested by the appellant, the Employment Committee will have to conduct judicial review of the decision ordering his dismissal, which he claims was given unlawfully. This is in light of the Halamish High Court of Justice, which ruled that it is not possible to attack an administrative decision regarding the dismissal of a prison guard indirectly, by way of a monetary claim. The Employment Committee does not have the authority to discuss the question of the legality of the procedure for serving guards in the reserves.
- On the other hand, the appellant argued that the authority to hear his claim is vested in the Employment Committee. The state's argument that the labor court lacks jurisdiction to hear its claim in light of the provisions of section 129(a) of the Prisons Ordinance is irrelevant to the dispute that is the subject of the appeal. There is no dispute that the said section 129(a) is a specific arrangement that applies when one wishes to object to the exercise of a power relating to the dismissal or release of a prison guard from service. The IPS is a public body and it is an exercise of authority that is subject to the rules of administrative law, and therefore the correct court is the Court for Administrative Affairs. There is also no dispute that the legislature's intention in enacting section 129(a) of the Prisons Ordinance was to prevent claims by IPS employees for violations of labor laws, due to the special nature of the service, but the legislature did not intend to prevent IPS employees from filing lawsuits under the Discharged Soldiers Law. The rights of the appellant who were violated are those granted to him under the Discharged Soldiers Law. In order to realize these rights only, he submitted his claim to the Employment Committee in accordance with the provisions of the legislature in section 21 of this law. In light of section 30 of the Discharged Soldiers Law, the appellant is not entitled to file his claim with the Court for Administrative Affairs. In 2001, the Discharged Soldiers Law underwent many amendments, and the legislature continued to believe that it was important that the appellant's claim be clarified by the Employment Committee, and only afterwards could he appeal to the Labor Court. Had he thought otherwise, he would have canceled the Employment Committee. In light of section 30 of the Discharged Soldiers Law and in light of the explanatory notes to the bill to amend the Police Ordinance and the Prisons Ordinance, the Labor Court still has the authority to hear appeals against decisions in matters under the Discharged Soldiers Law; and if this is the case, all the more so that the authority to hear these matters in the first instance is reserved for the Employment Committee. Section 129(a) of the Prisons Ordinance does not apply to the Employment Committee, which is an administrative committee that serves as a quasi-judicial tribunal, but only to the Labor Court. Section 129(a) of the Prisons Ordinance uses the following language: "an action to be objected to." In the lawsuit, the appellant does not object to his dismissal, but rather demands the compensation to which he is entitled under the Discharged Soldiers Law, due to dismissal during the prohibited period after active reserve service. According to the appellant, it is possible that a situation in which it will be found that the dismissal was done lawfully and he will still be entitled to compensation under the Discharged Soldiers Law.
- The Regional Labor Court accepted the state's appeal, and in order to rule on the question of substantive jurisdiction, it clarified these three sub-issues (paragraph 7 of the judgment):
"A. Does the lawsuit directly or indirectly attack the IPS's administrative decision to dismiss the respondent from service?
- Whether, as the appellant claims, any action opposing the dismissal of a prison guard or his release from service in the IPS, whatever its grounds, is the jurisdiction to hear it the District Court sitting as the Court for Administrative Affairs?
III. Does section 30 of the Discharged Soldiers Law constitute a barrier for the District Court, sitting as the Court for Administrative Affairs, to hear the Respondent's claim?"
- As to the first question, the Regional Court ruled that the appellant's claim constituted an indirect attack on the dismissal decision. This is what it says (paragraph 8 of the judgment):
"In other words, even if the respondent in the statement of claim does not explicitly claim the cancellation of the dismissal and only demands monetary compensation, he still claims in Rachel, your little daughter, in paragraph 83 of the statement of claim, that the dismissal is due to his military service and therefore is not lawful, as follows: