Second, in the Weinberger case, the court detailed the considerations that the employer must consider when deciding whether to grant the employee's request to continue working after retirement age. The hospital did not present any evidence indicating that these considerations were considered, nor does Prof. Marin's testimony indicate that it examined these considerations.
- In summary, we determine that the hospital did not fulfill its duty under the Weinberger rule, and there was no proper procedure for considering the appellant's request to continue working after she reached retirement age.
Was the appellant discriminated against because of age?
- The Regional Court rejected the appellant's claim that she was discriminated against because of age. The Regional Court accepted the appellant's testimony that Prof. Marin had spoken about the need to allow young doctors to advance, and her claim that similar things had been said to her by Prof. Rowe was not contradicted. However, the claim of discrimination on the basis of age cannot stand, in view of the provision of section 4 of the Retirement Age Law and the fact that in the Gavish case it was ruled that the purpose of the division of intergenerational opportunities was recognized as appropriate.
- As stated, in the Gavish case, it was ruled that section 4 of the Retirement Age Law, which establishes a mandatory retirement age, meets the limitation clause, inter alia, in light of the Weinberger rule, which requires the employer to consider the employee's request to continue to work after retirement age, a procedure that minimizes the violation of equality and discrimination on the grounds of age, as a result of setting a mandatory retirement age. A question may arise whether an employer who does not fulfill its duty under the Weinberger Rule, whether it does not fulfill it at all or whether it fulfills it only for appearances, is discriminating on the grounds of age. In our case, it appears that there was a proceeding in which the appellant's request was considered, at the end of which the Director General decided to extend the continuation of the work for a period of eight months. Indeed, as we have determined above, there were flaws in the proceeding, and it is possible that the appellant is entitled to compensation for the defects that occurred in it, but it cannot be determined that the mere rejection of the appellant's request to continue working after retirement age constitutes age discrimination, since in accordance with the Weinberger rule , the employer is not obligated to comply with the employee's request.
- In summary, despite the flaws in the procedure taken by the hospital in the Weinberger case, it is not possible to determine that the appellant was discriminated against because of her age. The question of the appellant's entitlement to compensation due to the defects that occurred in the proceeding will be heard by the Regional Court.
Conclusion
- On the basis of all of the above, the appeal is accepted and we determine that there was room to transfer the burden of proof to the hospital; The hospital did not lift the burden imposed on it and did not prove that the decision to reject the appellant's request to continue working after retirement age was not tainted by discrimination on the basis of sex; The hospital did not conduct a proper procedure to consider the appellant's request to continue working after she reached retirement age, but these defects do not amount to discrimination on the basis of age. The proceeding will be returned to the Regional Court for a hearing on the question of the financial remedies to which the appellant is entitled due to the discrimination and the violation of her right to equality and due to the flaws in the decision-making process to reject her request to continue working after retirement age.
The hospital will pay the appellant attorney's fees in the sum of NIS 10,000, within 30 days from today, otherwise the sum will bear linkage differentials and interest as required by law from today until the date of actual payment.