With regard to Dr. Ashkenazi's continued employment after he reached retirement age, the hospital's witnesses had different versions, which did not reconcile with each other. Thus, Ms. Shapira testified in her affidavit (paragraph 24) that Dr. Ashkenazi ceased to be a unit manager when he reached retirement age and continued to work as a specialist physician as is customary in the hospital (paragraph 24 of the affidavit). On the other hand, in her interrogation at the hearing of the request for temporary relief on January 11, 2021, she testified that Dr. Ashkenazi agreed to continue managing the unit even after he reached retirement age, while waiving the title and salary involved in the position (p. 7, paras. 4-7). In her cross-examination as part of the hearing in the main proceeding on April 30, 2023, she testified that Dr. Ashkenazi continued to manage the adult day hospital for many years because no replacement was found for him, but already at the time of the filing of the claim by the appellant (December 2020), he did not serve as a director but as an ordinary physician (Transcript at p. 24, paras. 8-13). Prof. Marin testified that at the time of the appellant's retirement, there was no shortage of hematology, and that accordingly the scope of Dr. Ashkenazi's position was reduced to half a position (paragraph 12 of his affidavit), and in his cross-examination he testified that Dr. Ashkenazi continued to work as an ordinary physician even after he was appointed director of the day-hospital unit on a part-time basis in accordance with the need in the department (p. 45, paras. 13-15). What emerges from the aforesaid is that despite the ambiguity regarding the date on which Dr. Ashkenazi was appointed as a replacement in his position as director of the day hospitalization unit, it emerged from the testimonies that at a certain point Dr. Ashkenazi continued to work part-time as an ordinary physician after he was appointed director of the day hospitalization unit, and as stated, according to Ms. Shapira, this was the state of affairs at the time of the termination of the appellant's employment. In the affidavits of testimony on behalf of the hospital, no explanation was given as to why the hospital continued to employ Dr. Ashkenazi part-time even after a replacement manager was appointed to the unit that Dr. Ashkenazi managed, and what criteria were met for approving continued employment after retirement age. In view of the fact that Dr. Ashkenazi continued to be employed as an ordinary physician even after he was appointed as a substitute manager for the unit and did not serve as the director of the unit, the fact that in the past he served as the director of the unit is irrelevant, since at the time of the appellant's retirement he was employed in the same position – an ordinary doctor in the day-hospital unit (the question of the implications of giving weight to Dr. Ashkenazi's being a former manager in the decision to allow his continued employment after retirement age will be addressed below). In this context, it should be noted that although the appellant had other roles, there is no dispute that she was also involved in the treatment of patients, such as Dr. Ashkenazi. The fact that both the appellant and Dr. Ashkenazi fulfilled the same position in the day-hospital unit can also be learned from the testimony of Prof. Marin, whose version (which was first raised in cross-examination) should have decided whether to fill the position of regular physician in the day hospitalization unit by the appellant or by Dr. Ashkenazi (transcript of April 30, 2023, p. 45, paras. 13-23). Therefore, in the circumstances of the case, the very fact that Dr. Ashkenazi continued to be employed as an ordinary physician for many years after retirement age, including during a period when, according to the hospital, there is no shortage of hematologists and doctors who have reached retirement age can find replacements (Nili Shapira's affidavit, paragraph 20), so that prima facie there is no reason to continue his employment after the mandatory retirement age according to the criteria declared by the hospital. constitutes a circumstance that shifts the burden of proof to the hospital. In this context, it should be noted that according to Ms. Shapira's testimony, doctors after retirement age are employed under a contract that is renewed annually, and as stated, no explanation was given as to why Dr. Ashkenazi's employment was extended even after he was appointed a manager to the unit.
- As to the quantitative level: as stated, in accordance with case law, for the purpose of transferring the burden of proof to the employer, the burden imposed on the employee is a "relatively light burden", and against the background of the power and information disparities that characterize the employee-employer relationship, "a particularly high threshold should not be set" and "strict threshold conditions should not be set". In our case, beyond the fact that the appellant is not required to prove qualifications that exceed Dr. Ashkenazi's, a determination that she must submit an expert opinion to compare her skills with those of Dr. Ashkenazi sets a high evidentiary standard, which significantly exceeds the threshold required in accordance with case law for the purpose of transferring the burden of proof. In our case, we are dealing with two physicians with the same specialty – hematological internists, of the same rank, and Dr. Ashkenazi was employed at the time of the appellant's retirement as an ordinary physician in the day-hospital unit and not as a manager, so that on the face of it, his management skills are irrelevant. As stated, in order to pass the burden of proof, the employee is required to have "first proof only". Therefore, in our case, the data detailed above are sufficient to transfer to the hospital the burden of proof, including the burden of proving the difference between the appellant and Dr. Ashkenazi regarding the continuation of employment at the hospital after retirement age. It should be emphasized that beyond a general statement in Prof. Marin's testimony about "the specialization of the medical fields and the creation of subspecialties within the medical fields", the hospital did not point to any concrete data regarding the qualifications or any other that exists in Dr. Ashkenazi that creates a relevant difference between him and the appellant with regard to the transfer of the burden of proof. As for the difference that Prof. Merin pointed out in his testimony – the fact that Dr. Ashkenazi served in a managerial position prior to his retirement – we will address in section 72 below.
- Another argument raised by the appellant is that from the data in the documents attached to Ms. Nili Shapira's affidavit, it appears that "consequential discrimination" was proven, which was reflected in the fact that the percentage of male physicians in general and in managerial positions in particular was significantly higher than the rate of women. Thus, while the ratio of senior specialist physicians stands at 64% men and 36% women, 93% of department directors are men and only 7% of department directors are women. It should be noted that there is also a significant gap in the position of unit manager, albeit a small one (76% men and 24% women). The appellants further argued that the gap between men and women in managerial positions cannot be explained by the fact that the number of female physicians in the relevant yearbooks is significantly lower, since according to an official document of the Ministry of Health, on the date the appellant completed her medical studies, the percentage of women who completed medical studies was 36% of all physicians. On the other hand, the hospital argued that in the relevant group for the position of department head, which is the older and older physicians, the proportion of male physicians is higher, and therefore no conclusions should be drawn from this figure. The hospital further argued that relatively speaking, the proportion of female doctors who continue their work after retirement age is higher than the rate of physicians who continue their work after retirement age, while the appellants argued that the absolute numbers of male and female doctors employed after retirement age should be taken into account, and that "no comparison should be made that leaves the women in their ghetto and the men in their ghetto", and that the gap in the data (57 doctors compared to 12 female doctors) also indicates discrimination. According to the appellants, even in view of these facts, there was room to transfer the burden of proof to the hospital.
After examining the arguments of the parties and the evidence material, we determine as detailed below.