The declarants on behalf of the hospital also referred in their affidavits, in summary, to the continued employment of Dr. Ashkenazi after he reached retirement age (Ms. Shapira's affidavit, paragraphs 24, 31; affidavit of Prof. Marin, para. 12).
Therefore, the issue of Dr. Ashkenazi's continued work many years after he reached retirement age was certainly at the forefront of the dispute in the proceeding from its inception. The hospital chose almost no to address this matter in the statement of defense and the affidavits of testimony on its behalf, and as will be detailed below, it did not even bring any concrete evidence in this regard. However, this choice of the hospital does not lead to the conclusion that the issue of Dr. Ashkenazi's continued employment is not part of the front of the dispute in the proceeding. The significance of the choice of this hospital will be addressed below, when we will discuss the question of the transfer of the burden of proof and the question of whether the hospital has lifted the burden of proof.
Termination of an employee's employment due to reaching mandatory retirement age:
- The issue of requiring an employee to retire from work due to reaching a certain age has been regulated in the Retirement Age Law. With regard to setting the mandatory retirement age, i.e., the age at which an employee can be obligated to retire from work, the recommendation of the Public Committee for Examining the Retirement Age, headed by Justice (retired) Shoshana Netanyahu, was adopted not to abolish the mandatory retirement age altogether, but to raise it gradually, to raise it to 67 for both men and women, and to anchor it in a law that will apply to all workers in the economy.
(On the legislative situation leading to the enactment of the Retirement Age Law, see the Weinberger case, paragraphs 29-30 of the judgment; a review of the Gavish case, paragraphs 1-3 of the judgment, and the references therein).
It should also be noted that the Retirement Age Law includes additional arrangements beyond the determination of the mandatory retirement age, including determining the age of eligibility to retire from work while receiving a pension due to retirement from work and the possibility of early retirement, as well as provisions regarding the retirement age for women – arrangements that are not relevant to our case.
- With regard to the determination of the mandatory retirement age, section 4 of the Retirement Age Law states that "the age at which an employee may be obligated to retire from his job due to his age is the age of 67 for men and women (in this law – the mandatory retirement age)." Section 10(a) of the Retirement Age Law stipulates that the provision of section 4 of the Law takes precedence over any agreement, and it allows the employer to obligate an employee to retire from work upon reaching mandatory retirement age. However, the Retirement Age Law does not establish a cogent obligation to retire from work at the age of 67, and the employer and the employee can agree that the retirement age will be different from the mandatory retirement age, and inter alia, determine that the mandatory retirement age will be higher than the mandatory retirement age set by law (section 10(b)(1) of the Retirement Age Law).
- In the Gavish case, the Supreme Court was required to rule on the question of the constitutionality of section 4 of the Retirement Age Law, when the petitioners in the proceeding argued that forced retirement due to age unlawfully violates the right to equality derived from the constitutional right to human dignity. At the end of the day, in the judgment in the Gavish case, the Supreme Court accepted the petitioners' argument that requiring an employee to retire from his job due to reaching the same age constitutes a violation of the right to equality, which amounts to a violation of the right to human dignity, but "the violation meets the requirements of the limitation clause and therefore there is no room for the revocation of the provision of the law ...(paragraph 34 of President Naor's judgment).
- For our purposes, it should be emphasized that in the decision in the Gavish case regarding the constitutionality of section 4 of the Retirement Age Law, significant weight was given to the ruling of this Court in the Weinberger case, according to which the law grants an employee the right to request his employer to continue working even after he has reached the mandatory retirement age, and against this right the employer is obligated to examine the request in a substantive manner and on an individual basis, although he is not obligated to grant the request. Thus, in President Naor's opinion, it was determined that "the interpretation of section 4 of the Retirement Age Law also has implications for its constitutionality"; "The Tribunal's approach in the Weinberger case "gives . . . It expresses the need for flexibility in retirement and 'softens' the collective model of forced retirement, without canceling it entirely", "It adds to the balance between the needs of different 'players' in the labor market", and "it is sufficient that the retirement age is not cogent and that the employer must consider continuing to employ the employee after retirement age in order to reduce the harm to the employee".
See also: the opinion of Justice (as he was then called) Fogelman, according to which the employer's duty to consider the continued employment of an employee after retirement age is "a component that has considerable weight in examining the balances within the scope of the third proportionality test"; paragraph 18 of the opinion of Justice Dafna Barak Erez; the opinion of Justice Hayut (as described at the time); Section 3 of Justice Hendel's opinion.
- In summary: In accordance with the case law in the Gavish case, despite its violation of the right to equality, which amounts to an infringement of human dignity, section 4 of the Retirement Age Law meets the requirement of the limitation clause, and therefore the petition to cancel it was rejected.
It should be noted that the judgment in the Gavish case was given in 2016, almost a decade ago, and some of the justices were of the opinion that there was room for a re-examination of the issue with the passage of time, due to the significant increase in life expectancy and other reasons (see the opinion of Deputy President Justice Rubinstein; the opinion of Justice Hendel). Since this question was not raised in the proceeding before us, the starting point for the discussion of this proceeding is the Gavish rule.