Second, the appellant presented evidence indicating patient satisfaction – inquiries made to both the hospital and the Ministry of Health with a request to cancel the decision to terminate her employment, and testimonies were also heard in this regard. This evidence indicates that there was a "demand" for the appellant among patients in the department, one of the criteria for the continuation of a doctor's work after retirement age, as claimed in Ms. Shapira's affidavit. The hospital did not address this evidence at all, nor did it present evidence that contradicts the appellant's version of her contribution to the work of the department. In addition, the hospital did not address the need for the appellant's work in the additional area of expertise she had – CLL , nor to the contribution of her work in the laboratory, which, according to the appellant's version, contributed a lot of income to the hospital. In this context as well, the hospital's failure to present evidence is in its obligation, and for this reason too, the hospital has not lifted the burden of proof imposed on it.
Third, another difficulty that arises from Prof. Merin's testimony is his attempt to argue that there was no room for the appellant to continue her work after retirement age, because she could not integrate into the new directions of the department's activity – bone marrow transplantation and cortigage. However, Prof. Marin confirmed that Dr. Ashkenazi also does not deal with these two areas (Transcript of April 30, 2023, p. 48, Q. 4). and therefore it is clear that this does not explain the appellant's non-employment after retirement age, in the fields in which she was engaged in the past. In this context as well, the failure to present data on the department's workforce and the distribution of physicians according to their occupation in the various fields is the hospital's obligation.
Fourth, the Regional Court accepted Prof. Merin's version that a situation of shortage or even distress in a particular profession is not permanent and can be changed, and therefore the fact that Prof. Rowe and Dr. Ashkenazi were employed after they reached retirement age does not prove that at the time the decision was made in the appellant's case, the issue of gender was a consideration in the decision or tarnished it. The Regional Court further ruled that "this conclusion does not change due to the fact that Dr. Ashkenazi continued to be employed after his service above retirement age was extended for a long period of time due to his tenure as director, even after he ceased to be the director of the day hospitalization department and continued to be employed as an internist in a day hospital." We are unable to accept the final ruling of the court. The regional. In our opinion, once Dr. Ashkenazi ceased to be the director of the day hospitalization unit, and he performs the role of a doctor in a day hospitalization that the appellant can also perform, the hospital must apply the same criteria with respect to the continued employment of the appellant and Dr. Ashkenazi after retirement age. The determination that Dr. Ashkenazi's employment as the director of the day-hospital unit in itself constitutes a reason for his continued employment after retirement age raises a difficulty. Given the extreme gap between men and women in management positions in the hospital, giving preference to a doctor who served as a manager (whether before or after retirement age) later in the employment after reaching retirement age perpetuates the reality of gender discrimination, and leads to consequential discrimination. It is clear that as a result of giving preference to physicians who have served in management positions, fewer women will be employed after retirement age, since they have no previous experience in a managerial position. This is when it has not been claimed or proven that the management skills or experience in a managerial position are required for the position of an ordinary doctor.
- An examination of the table of physicians employed after retirement age in 2020 (Exhibit 7 of the Appellant's exhibits), the year in which the Appellant reached retirement age, shows that out of 73 physicians employed after retirement age, only 14 were female physicians, i.e., less than 20%. Fifteen of them, i.e., a little more than 20%, held managerial positions (hospital director, deputy hospital director, department directors, unit managers, and institute managers), and a large number of these were even employed full-time rather than part-time, contrary to the declared policy that a manager who continues to work relinquishes his degree and is not employed full-time. These figures do indeed raise "suspicion" of giving preference to physicians in general and to physicians in managerial positions later in employment after retirement age. The witnesses on behalf of the hospital claimed in their testimony that the explanation for these discrepancies is that in the relevant years, the number of female physicians employed at the hospital in general, and as a result, in managerial positions as well, was lower than the number of physicians, but this general argument was not supported by evidence on the ratio between male and female physicians in the relevant years; No evidence was presented as to why it was necessary to continue employing physicians after retirement age in managerial positions with their title and full-time scope, contrary to the declared policy; In addition, no data were provided on the response and rejection of requests by physicians to continue working after retirement age in the relevant years. Once the burden of proof has been transferred to the hospital, to the extent that there is a deficiency in the data, it is acting in accordance with the hospital's obligation.
- In light of the extreme gap between physicians and female physicians in management positions; In view of the fact that, according to Ms. Shapira's testimony, due to various reasons, such as going on maternity leave, the professional advancement of female physicians is sometimes slower than that of physicians (pp. 17, 8-12), so that they reach senior ranks at an older age; In light of the employer's obligation to consider in deciding whether to accede to an employee's request to continue working after retirement age, to also consider the number of years he has worked in the workplace and the extent of his entitlement to the benefit, it may be appropriate to give preference to employing female physicians after they reach retirement age, thus contributing to correcting the gender gaps that have been created in the past, and allowing female doctors who eventually reached senior ranks to realize their achievement by extending their employment period. As much as they wish to do so.
- In summary, in light of the above, since the hospital did not prove that it had made the decision in the appellant's case from the considerations it presented in its affidavits, and it was proven that the decision was made for other reasons, and since the hospital refrained from presenting evidence and data in its possession, the result is that the hospital did not meet the burden of proving that its decision to reject the appellant's request to continue working after retirement age was not tainted by discrimination on the basis of sex.
Did the hospital fulfill its obligation under the Weinberger rule?
- Another argument raised by the appellants is that the hospital did not fulfill its duty under the Weinberger rule, i.e., the duty to consider in good faith the continued employment of the employee after retirement age. According to the appellant, she did indeed have meetings with Prof. Marin, but she did not receive a summons to an orderly hearing regarding her continued employment after she reached retirement age, including that she was not given the opportunity to respond to the reasons for the decision and the opinion of her superiors, who allegedly did not support her continued employment after retirement age.
- The hospital claimed that the appellant had meetings with the director general of the hospital in which her request to continue working after retirement age was discussed, and her retirement was rejected at her request to complete her registration as a professor. In light of this, her claim in the appeal that she was not given a hearing and her voice was not heard on the matter should be rejected.
- The Commission argued that it appears that the hospital did not have a written procedure in the relevant period of the proceeding, which determines what considerations will be taken into account when deciding whether to allow the continuation of employment after retirement age, as is expected of an employer such as the hospital. The only procedure presented in the pleadings is the "Procedure for Accompanying Employees Towards Retirement" which was attached to the affidavit of the hospital's testimony, which bears the date of January 7, 2021, a late date for filing the claim, and refers to an "exceptions committee" that was not claimed to have existed in respect of the appellant.
- After examining the arguments of the parties and the material in the file, we determine as detailed below.
- The evidence shows that there was no proper proceeding before Prof. Marin's decision to reject the appellant's request to continue working after retirement age was made. First, as Prof. Marin's testimony shows, he had conversations on the matter with the director of the department, Prof. Rowe, with Dr. Ashkenazi and with other doctors in the department. The content of these conversations, in which he claimed that he was asked not to respond to the appellant's request to continue working after retirement age, was not brought to the appellant's attention, and she was not allowed to deal with the arguments raised therein (insofar as arguments and reasons for rejecting her request were raised, and not just the "bottom line" of a recommendation to reject her request). Thus, Prof. Marin testified that he did not share the considerations with the appellant, but only "hinted nicely". We emphasize that we have not lost sight of the fact that it emerged from Prof. Merin's testimony that he wished to preserve the appellant's dignity, and in his testimony in court he also expressed restraint in order not to say things that might harm the appellant (see, for example, transcript of April 30, 2023, p. 47, paras. 14-15). His testimony further revealed that even in the conversation that took place between him and the appellant regarding the continuation of her work after retirement age, he was careful in his words in order not to harm the appellant's dignity (transcript of April 30, 2023, p. 48, paras. 37-39; p. 49, paras. 2-5 and s. 15). However, this conduct, even if it stemmed from a good intention not to harm the appellant, deprived her of the right to plead and the possibility of dealing with these arguments. "This matter can be inferred from the case law that states that "the very dismissal of an employee on a certain alleged ground, when in fact the dismissal is on another ground, as determined by the Regional Court, constitutes unlawful dismissal, insofar as it constitutes conduct in bad faith (National Labor Court Hearing 41/39 - 3 Eliyahu Hagag - Eitam Regional Administration Cooperative Society Ltd., PD 13 74 [Nevo] (1981)) and empties the hearing held for the employee" [Labor Appeal (National) 38077-09-15 Aluminum Construction Peru in a Tax Appeal - Suleiman Al-Bazzat [Nevo] (September 25, 2016)]."
Compare: Labor Appeal (National) 43366-02-14 Charlie Ohana - Association of Beer-Sheva Area Cities (Fire Services) [Nevo] (January 14, 2018)