Labor Dispute (Tel Aviv) 21099-11-22 Yitzhak Salisher – State of Israel – Israel Prison Service

05 March 2023

Before:

The Honorable Judge Tomer Silora

Public Representative (Employees) Mr. Amir Ophir

Public Representative (Employers) Mr. Haim Hopper

Decision

1. BeforeSo Request מדינת ישראל - The Israel Prison Service (hereinafter - "The Applicant" or "The country") to dismiss the lawsuit against it out of hand due to lack of substantive authority.

The Applicant's Argument

2. According to the Applicant, the matter of the proceeding is the plaintiff's claims – an officer in the Prison Service – that he was not appointed to the position due to workplace bullying. The plaintiff is petitioning for this reason 30Compensation Caspi in the amount of NIS 500,000.
3. Section 24 (a) (1) The Labor Court Law, 5726-1969 (hereinafter: The Labor Court Law) which establishes the main powers of the Labor Court, states as follows:

"A regional court shall have exclusive jurisdiction to hear a claim between an employee or his successor and the employer or his successor whose cause is the employee-employer relationship, including a question regarding the very existence of an employee-employer relationship, and with the exception of a claim that arose inthe Torts Ordinance (New Version)."

4. The substantive authority to hear the claims of police officers or prison guards regarding the matters listed In section 93A Police Ordinance (New Version), 5731-1971 and section 129(a) of the Prisons Ordinance (New Version) 5732-1971 (hereinafter: The Prisons Ordinance) is the equivalent of the Court for Administrative Affairs only. This authority of the Court for Administrative Affairs derives from these sections, together with Article 37(2) To the First Addendum to the Administrative Courts Law, 5760-2000 (hereinafter: The Administrative Courts Law).
5. Section 129(a) The Prisons Ordinance states:

"An action that comes to object to the use of the powers given under this Ordinance with respect to the appointment of a senior prison guard, the appointment of a prison guard to a position, his transfer from one position to another or from one place to another, his promotion or demotion from rank, his suspension from his position or his dismissal or discharge from service, or his occupation of work outside his duties within the framework of the Prison Service shall not be considered as an allegation arising from an employee-employer relationship for the purpose of section 24 of the Labor Court Law.  1969."

6. According to the Applicant, since these are issues that fall within the scope of the provisions of this section – that is, the status or status of the prison guard within a hierarchical framework of the Prison Service, which is based on authority and discipline – the Labor Court has no jurisdiction to rule on the matter.
7. In relation to other issues, such as wages, working conditions, etc."Given the Labor Court's expertise in these matters, the Applicant does not dispute that the jurisdiction of the Labor Court will be vested in the Labor Courts. (Labor Dispute (Tel Aviv) 30939-04-15 Anonymous - State of Israel (Published in Nevo, April 28, 2015), but this is not the case in our case.
8. The Applicant Relying In a request for judgments, among other things Labor Appeal (National) 6134-10-21 Moshe Pozialov – State of Israel (Published in Nevo, May 10, 2022), in which it was held:

"While the allegation of harassment revolved around non-promotion in rank, the petition for monetary relief, which is different from the remedy he petitioned in the Court for Administrative Affairs, does not change the question of substantive jurisdiction.  This court was authorized to hear a claim for monetary compensation for harassment to the extent that it was determined that the non-promotion of the rank was based on harassment, otherwise we would find ourselves discussing the question of the reasons for not being promoted in the rank, while the Labor Court is not given substantive jurisdiction to hear this question."

9. According to the Applicant, it will not be possible to directly or indirectly attack the decisions of the police and the Prison Service on matters listed in the aforementioned sections, in the framework of claims in the labor courts.
10. Insofar as a plaintiff wishes to claim monetary relief due to decisions made regarding the matters listed in the aforementioned sections, he must first apply to the Court for Administrative Affairs, in order to decide whether the decisions are reasonable, and if it does determine that there was a defect in these decisions, it will be possible to sue for monetary relief in the Labor Court.

The Respondent argued

11. The plaintiff opposes the request The state, Neighbor According to him, The entire matter of the lawsuit concerns allegations of abuse, which were expressed in all kinds of ways, including his non-promotion in the position. This is humiliating behavior, contempt and creating a hostile work environment for years.
12. The mask of abuse that the plaintiff experienced from elements in the defendant is not covered under the definitions Section 29(a) The Prisons Ordinance and the dismissal of the lawsuit will allow the plaintiff to continue to be harmed.
13. According to the plaintiff, "The matter of his promotion is only a result of the abuse that he has experienced along his way" (paragraph 8 of the Respondent's response) and therefore, he does not validate a decision and/or a removal from office, neither directly nor indirectly. This is a factual setback, which in essence is severe abuse of the plaintiff.

Discussion and Decision

14. SLitigation in limine is regulated Regulations 44-45 to the Labor Court Regulations (Procedures), 5752-1991. This is a far-reaching remedy aimed at putting a dam on the brink of legal discussion. 
15. Therefore, the rule is that the dismissal of a claim or its dismissal in limine "They are means that are taken without a choice, and it is sufficient that there is a possibility, even a slight one, that according to the facts that constitute the cause of action, the plaintiff will be entitled to the relief he is seeking, so that the claim will not be dismissed while it is still hostile" (A. Goren, Civil Procedure Issues, 9th edition, p. 168).
16. Dismissal of a claim in limine is therefore not the king's way before this court, and the court will, as a rule, prefer the clarification of the claim on the merits of the matter. It was held that:

"The rule in the courts is that a dismissal in limine will be done only when the court is convinced that even if the plaintiff's path succeeds and he proves all of his claims that he claims in the statement of claim, it will not be of any benefit to him...  In the labor courts, deletion in limine cannot and should not be used as the king's way, and the dispute must be decided on the merits of the matter" (Application for Leave to Appeal 1204/01 Central Pension Fund of Histadrut Employees - Deborah Makovsky, Avoda Artzi, vol. 33(43) 28) [published in Nevo].