Labor Appeal (National) 4522-11-18 Country Israel – Michael Zelig - part 10

(1) to award compensation even if no pecuniary damage has been caused to the extent that it deems necessary in the circumstances of the case;

(2) to grant an injunction or injunction, if he considers that the granting of damages alone would be unjust; When issuing an order under this paragraph, the court shall take into account, inter alia, the effect of the order on the employment relations in the workplace and the possibility that another employee will be harmed; The provisions of this paragraph are valid notwithstanding what is stated in section 3(2) of the Contracts Law (Remedies for Breach of Contract), 5731-1970."

As stated above, even when the authority of the Labor Court is anchored in a special provision of the law, it is protected by  the Labor Court Law.  In other words, when we are dealing with a special provision of the law that authorizes the Labor Court to hear a particular matter, the Labor Court still acquires its authority  by  virtue of the Labor Court Law, by means of the provision  of section 24(a)(5) CIFA, which is intended to provide a framework for all the pieces of legislation in which unique authority was granted to the Labor Court.

26. In view of this, the question arises as to 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 referring to 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 suffix ("in any other law") (hereinafter: the broad interpretation).
27. On the face of it, and at first glance, the narrow interpretation fits more into the strict wording of section 93A , which states that an action "shall not be considered as a claim deriving from an employee-employer relationship", since the cause test is relevant only to section 24(a)(1) of the Law. However, on a deeper look, we are of the opinion that in the circumstances of the case, a broad interpretation is appropriate, and these are our reasons:
28. First, 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 to 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 of the 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 enactment of the provision  of section 93A of the Ordinance, the words of the legislation granting explicit unique authority to the Labor Court had not yet been enacted, and in any case  section 24(a)(5) of the Law had not yet been enacted.
29. Second, as appears from the explanatory notes quoted above, section 93A is based on the fact that the police is an organization with a hierarchical structure, and its service has unique characteristics that are not similar to the service of civil servants. This purpose – in terms of its internal scope – does not justify a distinction between the various normative sources that authorize the Labor Court to hear the claim.  Hence, the purposive aspect considers the expansion of  section 93A of the Ordinance, regardless of the manner in which the authority of the Labor Court was acquired, provided that a decision is required in the matter of the subscription in section 93A of the Ordinance.
30. Third, the Supreme Court's ruling shows a clear trend of giving an expansive interpretation of section 93A of the Ordinance, taking into account the purpose underlying it.  In the Pozailov case  , a broad interpretation of section 93A of the Ordinance was established so that it applies even if monetary remedies were involved in the cause of action, and in the Yakubov  case,  it was held that there is no room for a decision on the matters  listed in section 93A in Guerra, even if this would lead to a split of the hearing, despite the burden inherent in this.  The preference for the broad interpretation of section 93A in the case law of the Supreme Court constitutes a consideration for the preference for the broad interpretation of section 93A in the context  at hand as well.
31. Fourth, the argument regarding the uniqueness of the principle of equality does not justify the adoption of the narrow interpretation, for two reasons: the first reason is that, as appears from a review of the special legislative provisions authorizing the Labor Court above, these are not limited to equality. Therefore, this reason cannot hold all the special authorization clauses in the legislation, hence its weakness.  The second reason is that in the High Court of Justice case 1052/19 Miri Avraham v. State of Israel – Israel Police [published in Nevo] (August 19, 2019), the Petitioners there claimed discrimination against them in relation to police officers (although it is not clear whether there was a claim of discrimination under  the Equal Employment Opportunity Law), and the Supreme Court ruled that the authority is vested in the Court for Administrative Affairs.  In this context, we should also mention that in the High Court of Justice 6069/10 Mahmali v. Prison Service [published in Nevo] (May 5, 2014) – the petition was filed before the amendment to the Administrative Courts Law – a claim of discrimination under the Equality Law was heard in the Supreme Court sitting as the High Court of Justice.  Admittedly, the judgment referred to the provision  of section 129 of the Prisons Ordinance (New Version), 5732-1971.  However, its wording and purpose are identical to the wording  of section 93A of the Police Ordinance.
32. Fifth, and with regard to section 14 of the Equality Law, which is the focus of this appeal, the Equal Rights for Persons with Disabilities Law is intended to realize a proper and broad social purpose of protecting "the dignity and liberty of a person with disabilities, and to anchor his right to equal and active participation in society in all areas of life, as well as to provide an appropriate response to his special needs in a way that will enable him to live his life with maximum independence. in privacy and respect, while making the most of his ability."  Section 14 of the Equality Law enshrines the authority of the Labor Court to adjudicate matters listed in Chapter D (which is the employment chapter) and the remedies that the Labor Court may extend.  In our opinion, the main function of  section 14 is to structure the spectrum of remedies, since the matters listed in chapter D of the Law in any case fall within the scope of the jurisdiction of the Labor Court by virtue of section 24(a)(1) of the Labor Court Law.    Section 14 of the Equality Law applies to all workers in the economy.  Without diminishing the importance of the national task placed on the shoulders of police officers and prison guards, they constitute a small group of all those employed in the economy from a numerical perspective.  Therefore, the assumption that this group was in the eyes of the legislature when it enacted section 14 of the Equality Law, and nevertheless no indirect amendment was made to section 93A of the Ordinance – is less likely.  Thus, given the enormous gap between the extensive operation of the Equality Law and the fact that the issue of the substantive authority to hear claims filed by police officers and prison guards is a certain point within its scope, the narrow interpretation should not be preferred because in 1998, with the enactment of the Equality Law, the legislature did not amend section 93A of the Police Ordinance in an indirect amendment.
33. Sixth, if the interpretation claimed by the appellant is accepted, then different grounds in the context of a single act of dismissal will be heard in different courts. Thus, for example, according to the appellant's argument, in a case where a police officer claims in the statement of claim that his dismissal constitutes discrimination on the basis of age in violation of the Equal Employment Opportunity Law, and in any case was done in an improper proceeding and in bad faith, a split may arise in the court competent to hear the various grounds for a single act of dismissal.  This is because, according to this argument, section 10 of the Equal Employment Opportunity  Law authorizes the court to hear a claim on the grounds of its authority (including age discrimination), while the ground for dismissal in bad faith and in an improper proceeding by virtue of section 24 of the law is denied in light of section 93A of the Ordinance.  This result of splitting the hearing in one act in accordance with the Labor Court's authorization clauses is inappropriate or desirable.  Although sometimes the result of a split is inevitable, on the interpretive level, such an intention should not be attributed to the legislature by means of a narrow interpretation of  section 93A of the Ordinance, and therefore a broad interpretation is preferable.
34. The appellant sought to build on the argument that in 2016 the Equal Rights for Persons with Disabilities Law was amended, in such a way that the Israel Police and the Prison Service were included in the definition of a "public body", in the context of appropriate representation of employees with disabilities in public bodies, including the Israel Police.  In our opinion, the legislative amendment does not change the above conclusion, for three reasons: First, the amendment from 2016 is intended to realize the social purpose of adequate representation for people with disabilities.  The amendment dealt with the essence of proper representation, and did not deal at all with the aspect of the delimitation of powers, even indirectly.  Second, it is difficult to draw any implications from a legislative amendment in 2016 – which did not deal with aspects of substantive jurisdiction – on the delimitation of the authority of the Labor Court by virtue of the Equality Law as drafted in 1998.  Third, although the case at hand focuses on the Equal Rights for Persons with Disabilities Law, the argument must be examined from a comprehensive perspective, taking into account additional pieces of legislation that grant special authority to the Labor Court, and by virtue of which entitlement may require a decision in the matter listed in section 93A of the Ordinance.  From this broad perspective, the specific weight of the arguments we have brought above arises, and accordingly the specific weight of an argument relating to one of the special pieces of legislation decreases.
35. For these reasons, we are of the opinion that the broad interpretation of section 93A should be preferred , so that the reference by virtue of it is also to section 24(a)(5) and to all the provisions of the law that grant the Labor Court unique authority to hear claims by virtue of them.  In other words, the Labor Court's authority to hear the matter of the subscriber in section 93A of the Ordinance is denied even if the authority of the Labor Court is anchored in a special legislation (together with section 24(a)(5) of the Law) to the extent that the cause of action involves a decision, even if in the case of the subscriber in section 93A of the Ordinance.  If no decision is required on such a matter, the court is authorized to hear the cause of action.  Here, too, when the statement of claim has a number of grounds, each cause of action must be examined separately, and the possibility that this separate examination will lead to a splitting of the hearing of the various grounds in accordance with the delimitation of the substantive jurisdiction of the Labor Court.
36. With regard to the appeal before us, we are of the opinion that the lawsuit was dismissed in limine (except for the cause of defamation). A perusal of the statement of claim, as stated above, shows that it claims dismissal.  However, even if we proceed from a point of view that benefits the appellant, as he is unrepresented, and examine the manner in which he presented and sharpened his cause of action later, while emphasizing his disability and the sequence of events that led to his retirement, this will not be of any benefit to him.
37. We will preface by noting that in our opinion, the claim of a police officer who voluntarily retired from the service due to the illegality of the sequence of events that led to his retirement, with an emphasis on the legality of his assignment to the position or place of his performance – falls within the scope of section 93A of the Ordinance. The reason for this is that the dispute regarding the legality of the assignment involves a decision regarding "the appointment of a police officer to the position, his transfer from one position to another or from one place to another in the position", as in the words of section 93A of the Police Ordinance, and these decisions are not within the jurisdiction of the Labor Court.  The fact that the remedy requested is monetary compensation, and not a return to service, does not increase or decrease it.   It should be recalled that in the Pozailov case, the  Supreme Court made a distinction between "clean" wage claims that have nothing to do with the dispute regarding appointments or rank and other financial claims, with the first type of claims falling within the jurisdiction of the Labor Court.  A claim for monetary relief that involves a decision in a dispute regarding assignment to a position or place of performance, which led to voluntary retirement from service, is far from being a "clean" wage claim.
38. The appellant wishes to clarify that his claim is to discriminate against him as a person with a disability, when the discrimination was expressed in his removal from his position as an investigator and from the Iron station. For the purpose of the hearing, we will assume – without deciding – that the spotlight of the action is indeed focused on the question of the legality of the appellant's removal from his position and from the place of performing his work in the light of the Equal Rights for Persons with Disabilities Law.  In our opinion, this ground also requires a decision in the matter of the appointment in section 93A of the Ordinance, i.e., "the appointment of a police officer to the position, his transfer from one position to another or from one place to another in the position", when the normative standard for examining the legality of the assignment includes an additional normative system, which is the Equality Law.    Even if the focus will be on the claim of discrimination,  according to section 8(c) of the Equality Law, "no action or omission from action required by the substantive requirements of the position or position shall be regarded as discrimination under this section."  Hence, the question of the existence of discrimination due to his transfer from the position of investigator in the Iron Police – in which we do not take a position on the merits of the matter – involves the question of the appellant's ability to fulfill the substantive requirements of the position of an investigator at the Iron station.  Without addressing the substance of the matter, a decision on this question actually requires a decision on the question of the substantive requirements of the position for the purpose of "appointing a police officer to the position", and this matter falls within the scope  of section 93A of the Ordinance.
39. Moreover, in this proceeding we are not required to address the question of the interpretation of the component of "his release from service", and to what extent does this encompass the grounds that, according to what is alleged in the statement of claim, led to voluntary retirement. Since the parties did not claim this, we will leave the decision on this matter for the time being (see, in a different context, Labor Appeal (National) 12050-10-16 Mordechai Shai Krief - State of Israel [published in Nevo] (March 18, 2018)).
40. In our opinion, since it was found that a decision on some of the causes of action would require a decision on the matters listed in section 93A of the Ordinance, these grounds were legally deleted from the action that was filed with the Labor Court. As can be seen from the above analysis, the three reasons – the Labor Court's authorization by special law to hear a claim of this type in relation to all the workers in the economy, the fact that the relief is financial, and the incidental nature of the decision in the matter of the subscriber in section 93A – do not justify that the Labor Court will be required to rule on the matter of the subscriber in section 93A of the Ordinance.
41. The Regional Court did not legally erase the ground based on a violation of the Prohibition of Defamation Law, since it does not involve a decision on the matter listed in section 93A of the Ordinance.  The splitting of the hearing on the various grounds in this case is inevitable, and it stems from the limitations of the Labor Court's substantive jurisdiction.
42. As to the claim against respondent 5, we did not find room to intervene in the outcome of the Regional Court's decision. Without addressing the question of the existence of a cause of action under  the Prohibition of Defamation Law, when this question is clarified in the main action, there is no dispute that respondent 5 was not the direct advertiser.  Admittedly, in accordance with section 7 of the Law, there may be circumstances in which the circle of those responsible for advertising will be expanded beyond the direct advertiser, but – and this is the main thing – for the factual circumstances that justify expanding the circle of legal liability beyond the direct advertiser, a claim must be made in the statement of claim against the person against whom the expansion of liability is sought.  Since nothing was argued on this matter in the statement of claim, we did not find a flaw in the Regional Court's decision to dismiss the claim against respondent 5 in limine in the absence of cause.
43. Finally, we would like to note that we are aware that the result we have reached regarding a split between the Court for Administrative Affairs and the Labor Court in accordance with section 93A of the Ordinance is a burden on the police officer filing the claim. To this, we will add that even with respect to a cause to be heard in the Administrative Affairs Court, the possibility that the need to translate it into financial relief in the Labor Court after the conclusion of the litigation in the Administrative Affairs Court and depending on its results should not be ruled out.  This is an additional burden for the plaintiff policeman.  The concern is that at the end of the day, the costs and burdens involved in splitting the litigation will constitute a negative incentive to exercise the right of access to the courts of the police officers as employees.  Therefore, we deem it appropriate to order that our judgment be forwarded to the Attorney General for review in order for him to consider the consequences arising from the said division of powers.
44. Finally , the appeal should be dismissed. In the circumstances of the case, and once the appeal has raised a question worthy of discussion – there is no order for costs.

It was given today, the 4th of Nissan 5780 (March 29, 2020), in the absence of the parties and will be sent to them.