The Discharged Soldiers Law, which was enacted in 1949, is a specific law that regulates the investigation of claims filed by virtue of it by any employee who was dismissed due to or during or immediately after his reserve service. However, section 129(a) of the Prisons Ordinance, which was amended in 1971 and 1980, relates specifically to those who serve in the IPS and the attacks of the IPS decisions detailed therein, and it is later than the Discharged Soldiers Law, and therefore its arrangement overrides that of the Discharged Soldiers Law.
In addition, in the Halamish High Court of Justice case, the court interpreted the box "an action that comes to object to the use of the powers given under this Ordinance..." As a claim that raises a controversial question is one of the issues listed in section 129(a) of the Prisons Ordinance. The normative source from which the next action to object to the use of the powers given under this Ordinance is drawn is irrelevant. In other words, it can be rooted in the prohibition of discrimination (see Labor Dispute (Tel Aviv) 16239-07-15 Miri Avraham v. State of Israel - Israel Police [published in Nevo] (April 17, 2017) paras. 35-36), labor law, contract law or the Discharged Soldiers Law."
- In light of all of the above, the Regional Court accepted the State's position and ruled that "the competent court to hear the Respondent's claim is the District Court, sitting as the Court for Administrative Affairs, and not the Employment Committee under the Discharged Soldiers Law" (section 11).
- The appeal against the judgment of the Regional Court was filed before us, with the parties mainly repeating their arguments in the Regional Court, which we reviewed at length above, and therefore we will now turn to decide their arguments.
Discussion and Decision
- After examining the written and oral arguments of the parties, we decided to accept the appeal, in the sense that the Employment Committee is authorized to hear the appellant's claim by virtue of the Discharged Soldiers Law.
- We will preface by noting that the Employment Committee gave its decision on November 26, 2018. This, however, has not yet been rendered in the appeal of Petition/Administrative Claim 2569/19 Moshe Pozailov v. State of Israel - Israel Police [published in Nevo] (December 3, 2019) (hereinafter: the Pozailov case); Civil Appeal Authority 6607/19 State of Israel v. Israel Police v. Moti Yakubov [published in Nevo] (February 12, 2020) (hereinafter: the Yakubov case); Labor Appeal (National) 4522-11-18 Michael Zelig - State of Israel [published in Nevo] (March 29, 2020) (hereinafter: the Zelig case); Labor Appeal 1582-01-19 Daniel Ben Sha'anan - State of Israel - Israel Prison Service [published in Nevo] (29.3.2020) (hereinafter: the Ben Sha'anan case). The Regional Court gave its decision before the judgments in the Zelig and Ben Sha'anan case and shortly after the judgment in the Yakubov case, relying on it. In these rulings, the normative framework was clarified, including the scope of application of section 93A of the Police Ordinance and section 129 of the Prisons Ordinance. In addition, the applicable law has been clarified in a case in which a claim is filed with the Regional Labor Court against the police on the following grounds within the scope of section 93A of the Police Ordinance, where the requested relief is only monetary relief on the grounds of damages due to breach of the employment contract and dismissal (see Yakubov).
- In these judgments, the reason for some of the appellant's arguments has been taken away, and the words are directed at the fact that in light of the ruling in the Yakubov case, when section 129 of the Prisons Ordinance or section 93A of the Police Ordinance applies, there is no choice but to split the hearing. In other words, in the said judgments, the scope of the interpretation of sections 93A and section 129 of the Police Ordinance was discussed , and given two interpretive options anchored in the language of these provisions, priority was given to the purpose underlying these provisions in view of the special organizational structure of the police, as reflected in the explanatory notes cited above. In the Yaakov case , it was clarified that this purpose applies when a claim for monetary relief is filed only, and even though the result is a clumsiness stemming from the need to litigate in the Court for Administrative Affairs on the legal question of whether the dismissal of a prison guard or a police officer was lawful, and later – and to the extent that it is determined that the dismissal was unlawful – in the Regional Court, for the purpose of translating the legal cause into monetary relief.
- On the other hand, another part of the appellant's arguments was strengthened in these judgments, as we will detail below, and at the end of the day we are of the opinion that in light of this reinforcement, the appeal should be accepted. In other words, we are of the opinion that the case at hand is different from the cases discussed in the Ya'akov case, the Zelig case and the Ben Sha'anan case, where the state's position was accepted, because the normative fabric surrounding each of the cases is different.
- In the Zelig case and in the Ben Sha'anan case, the claims were filed with the Regional Labor Court, and therefore a tension arose between the provisions of section 93A of the Police Ordinance and section 129 of the Prisons Ordinance and the provisions of the Labor Court Law. It should be noted that section 129, according to its wording, refers to the authority of the Labor Court by virtue of section 24 of the Labor Court Law, since it states that a prison guard's claim in matters listed therein "will not be considered as a claim arising from an employee-employer relationship for the purposes of section 24 of the Labor Court Law, 5729-1969" (our emphasis). In our case, the said tension does not apply directly, since the claim was submitted to the Employment Committee by virtue of the Discharged Soldiers Law, and section 129 of the Prisons Ordinance and section 93A of the Police Ordinance do not, according to their words, apply in this state of affairs.
- The State's argument is that Sections 129 and 93A should be interpreted extensively, in light of their purpose, so that the denial of authority is not directed only at the Labor Court, but at any body – including the Employment Committee – that is required to decide on the matter of the subscription in the aforementioned sections. We do not have this argument for the following reasons:
- First, the Discharged Soldiers Law includes not only a provision authorizing the Employment Committee, but also an explicit provision that denies the authority of another court to hear matters within the committee's jurisdiction, namely the provision of section 30 of the Discharged Soldiers Law. The Discharged Soldiers Law establishes at the end of section 30 a qualification for the revocation of the jurisdiction of a court, which is "cases in which this is expressly permitted by this law or in the regulations that will be enacted thereunder." A reading of the provision of section 30 of the Discharged Soldiers Law indicates that the legislature sought to establish an exhaustive arrangement that gives priority and supremacy to the provisions of the Discharged Soldiers Law, unless a different provision is established in the Discharged Soldiers Law itself. A conclusion that erodes the exhaustive nature of the arrangement in the Discharged Soldiers Law has an anchor in the normative fabric, and we have not found this.
- Second, the Discharged Soldiers Law was enacted before sections 93A of the Police Ordinance and section 129 of the Prison Service Ordinance were enacted. In this situation, the starting point – which is not necessarily the end point – is that the legislature deliberately did not refer in the aforementioned sections to the Discharged Soldiers Law (in addition to referring it to the Labor Court Law). Another interpretive conclusion requires an explicit or implied anchor in the aforementioned sections. There is no such anchor. On the contrary. In the explanatory notes to the amendment to the Police Ordinance and the Prisons Ordinance, we find an anchor for the opposite conclusion, and due to the importance of the matter, we will quote them below:
"There is no intention to be released from the application of the Labor Court Law, except with respect to certain claims related to the special nature of the service. Other powers of the Labor Court, such as its powers regarding withholding wages and annual leave, and its powers as an appellate court against decisions under the Civil Service (Pensions) Law, and under the Discharged Soldiers (Return to Work) Law, 5719-1949, as well as in claims under the Wages Protection Law, 5718-1958, and more, shall not be detracted from them."
- These explanatory notes strengthen the conclusion that the legislature, in referring to the Labor Court Law, did not seek to create an implicationally positive arrangement for other bodies that are required to decide the matters listed in sections 129 and 93A. His silence regarding the powers of the Employment Committee under the Discharged Soldiers Law to invoke lawsuits by prison guards on the grounds of a violation of the law should be interpreted as a negative arrangement.
- We are aware that in the Zelig case , an action was filed, inter alia, by virtue of the Equal Rights for Persons with Disabilities Law, 5758-1998, which states in section 14 that the Labor Court has exclusive jurisdiction to hear the cause of action discrimination in employment. In the Zelig case, an interpretive question arose regarding the scope of the application of section 93A of the Police Ordinance (the wording of which is identical to section 129 of the Prisons Ordinance), namely: "Whether the provision of section 93A of the Ordinance, which denies the authority of the Labor Court to hear claims in matters listed therein, should be interpreted as directed at section 24(a)(1) only (hereinafter: the narrow interpretation) or to all the alternatives to section 24, including section 24(a)(5) and the special pieces of legislation to which this section refers in the sifa ("in any other law") (hereinafter: the broad interpretation). In the Zelig case, in view of the purpose of section 93A, a broad interpretation of this section was adopted in a manner that led to the denial of the special authority granted to the Labor Court by virtue of section 14 of the Equal Rights for Persons with Disabilities Law, 5758-1998. The first reason for this conclusion was rooted in legislative history. Thus it is said in the matter of Zelig:
"In 1971, when section 93A of the Police Ordinance was enacted, additional special provisions of the law granting authority to the above-mentioned labor court, including the Equality Law, had not yet been enacted, and the end of section 24(a)(5) had not yet been enacted. It follows that at the time of its enactment, section 93A encompassed the full jurisdiction of the Labor Court, and only at a later stage were special legal provisions added authorizing the Labor Court to hear grounds by virtue of them. The broad interpretation of section 93A of the Ordinance gives expression to the concept that existed at the time of its enactment, namely the enactment of the full jurisdiction of the Labor Court. The narrow and strict interpretation of section 93A of the Ordinance is difficult because it creates a distinction between the various alternatives of section 24 ofthe Labor Court Law. In addition, it creates a distinction between the court's jurisdiction by virtue of section 24(a)(1) of the law and special legislative provisions that grant it unique authority to hear the action. It is difficult to attribute to the legislature an intention to make these distinctions when it denied the authority of the Labor Court by means of the cause test, if only for the reason that at the time of enacting the provision of section 93A of the Ordinance, the words of the legislation granting an explicit unique authority to the Labor Court had not yet been enacted, and in any event, section 24(a)(5) of the Law had not yet been enacted."