See also:
High Court of Justice 1268/09 Zozel v. Commissioner of the Prison Service, [Nevo] (August 27, 2012) (hereinafter – the Zozel case).
The Crystal Matter.
- In the Weinberger case, the court also addressed the question of the constitutionality of section 4 of the Retirement Age Law, but ultimately ruled that it would remain "subject to review" and would be decided by the Supreme Court.
- As stated, in the Gavish case, the Supreme Court rejected the revocation of the provision of section 4 of the Retirement Age Law, but at the same time adopted and even relied on the ruling of this Court in the Weinberger case, according to which an employee has the right to ask his employer to continue working even after the age of 67, and that:
"Against this right arises a duty on the employer to exercise proper and individual discretion in responding to this request. This duty stems from the duties of good faith and fairness that an employer owes to its employees, combined with the constitutional and legal prohibition on discrimination on the grounds of age. This combination is necessary. The employer should listen willingly, and consider in good faith an employee's substantive request for an extension of his employment period..."
This does not mean that the employer is obligated to comply with the request, but only to consider it seriously, taking into account all the relevant circumstances."
- In the Weinberger case, the court detailed the considerations relevant to the employer's decision, including considerations relating to the employee's personal circumstances, including the number of years he has worked in the workplace, the extent of his entitlement to the benefit, and his financial and family situation; considerations relating to the employee's contribution to the workplace, including the nature of the job, the degree of his success in performing it, the possibility of transferring him to another position, etc.; systemic considerations of the workplace, such as the objective needs of the workplace, employees waiting for promotion, and more; Pension considerations relating to pension arrangements in the workplace. It was further ruled that the employer must examine whether there is a possibility of continuing to employ the employee in another way, such as in a part-time position or as a consultant, and he is also entitled to examine the broad implications of his decision.
- As to the applicability of the Equality Law, it was ruled in the Weinberger case that forced retirement falls within the scope of section 2 of the Equality Law, even though it is not explicitly mentioned therein, following the Supreme Court's ruling in the Zuzel case. It was further ruled that "the forced retirement age can also be viewed as part of the 'working conditions' that are also listed in section 2 of the Equal Opportunities Law." As a result, beyond the employer's obligation to examine in good faith and in a substantive manner an employee's request to continue working after reaching retirement age, the prohibition of discrimination for the various reasons listed in section 2 of the Equality Law applies to his decision, and in our case – the prohibition of discrimination on the basis of sex.
- In summary, according to the Weinberger rule, which was adopted in the court's ruling in the Gavish case, according to the correct interpretation of section 4 of the Retirement Age Law, the appellant had the right to ask the hospital to continue working after she reached the age of 67, and the hospital should have considered her request willingly and in good faith, and decided on it based solely on substantive considerations, while maintaining the principle of equality and avoiding any discrimination. including discrimination on the basis of sex. It should be noted that in the Regional Court, the hospital argued that the appellant's claim was contrary to the Retirement Age Law and the ruling in the Gavish case, and therefore it lacks grounds. As explained at length above, the appellant's claim is anchored in the Retirement Age Law and in the case law in the Gavish case, which adopted the Weinberger rule. Admittedly, in the hearing before us, the hospital did not repeat this argument, but in our opinion it is possible that this approach adopted by the hospital when making the decision in the appellant's case, as detailed at length in the affidavit of Ms. Shapira Degani (paragraphs 9 to 11 of the affidavit), had an impact on the manner in which the appellant's application was examined, since, as will be detailed in paragraph 80 below, we have reached the conclusion that the hospital's conduct was inconsistent with its obligations under the Weinberger
The burden of proof is on the appellant or on the hospital?
- As is well known, the basic rule is "he who brings out the evidence from his friend", and as a rule, the burden of proving the claim is on the plaintiff. At the same time, both legislation and case law have determined that in certain circumstances this rule will not be fully applied, whether by way of reversing the burden of proof, or by way of creating a factual presumption (absolutely or when certain conditions are met), or in a combination of these two ways – creating a presumption when certain conditions are met, which reverses the burden of proof. This is due to a number of reasons that sometimes exist simultaneously: the importance of the values underlying the cause of action – the principle of equality, the prevention of sexual harassment, the granting of protection to whistleblowers, the protection of freedom of association, and the guarantee of the existence of the employee's rights by virtue of protective laws; Recognition of the inherent difficulty involved in proving certain types of claims, such as claims involving discrimination or claims for dismissal on prohibited grounds; Consideration of the power disparities and the built-in information gaps between the employee and the employer; The desire to incentivize employers (including actual employers of employees of manpower companies or service clients from service contractors) to act in a certain way.
See at length on the reversal of the burden of proof in various branches of law and in labor law in particular, Labor Appeal (National) 20880-07-20 Zerezgi - Kaplan and Levy in the Tax Appeal [Nevo] (June 20, 2022).
- As for the Equality Law, "the legislature was aware of the need to establish lenient evidentiary rules that take into account both the importance of eradicating the various and varied forms of discrimination in employment and the difficulties faced by the employee or job candidate to prove it. Accordingly, a series of evidentiary rules were outlined in section 9 of the Equality Law, including the rule that transfers the burden of proof to the employer to show that he has not violated the prohibition of discrimination in section 2 of the law... ".
Labor Appeal (National) 37078-11-13 Israel Electric Company in Tax Appeal - Lia Neidorf [Nevo] (February 13, 2018)
- For our purposes, section 9 of the Equality Law states as follows:
- In a claim by a job seeker or of an employee due to a violation of the provisions of section 2, the employer will have the burden of proof that he acted not in contravention of the provisions of section 2 –
- With respect to hiring, promotion at work, working conditions, sending for training or professional training, or payment of severance pay – if the employer has set conditions or qualifications in respect of them, and the job seeker or employee, as the case may be, has proven that the aforementioned conditions or qualifications have been met;
- Regarding dismissal from employment – if the employee proves that his conduct or actions did not constitute a reason for his dismissal.
...
- As to the extent of the burden imposed on the employee in order for section 9 of the Equality Law to be applied, it was ruled in the case of Orly Mori [Labor Appeal (National) 627/06 Orly Mori v. M.D.P. Yellow in Tax Appeal [Nevo] (March 16, 2008)] that "at the initial stage, the employee must first bring only evidence" (emphasis in the original – L.G.).
In the Goren High Court of Justice [High Court of Justice 1758/11 Goren v. Home Center (Do It Yourself) in a Tax Appeal [Nevo] (May 17, 2012)] the Supreme Court elaborated on the conditions for the transfer of the burden of proof: