The period protected by law. The answer to this question was provided by the employee who, and this was not denied, did not report to work and did not contact the employer since it was decided to transfer him from the position of CEO to the position of business development manager, even though from that date - in mid-June 2024 - until at least the beginning of September, according to the table in chapter 12 above, there were consecutive days in which he was not in reserve duty. In addition, since there are grounds for the belief that the employee believes that any position and authority he will hold in the company - he is entitled to exercise them and act in them to promote what he sees as the best interest of the company - even if this is in complete contradiction to the decisions of the board of directors - there is no reason that in the new position - which is also a managerial position - the employee will not act in direct continuation of the events described in the motion for his dismissal."
- In light of all of the above, the committee decided to allow the appellant's dismissal, as of December 1, 2024. This decision was appealed before us.
Managing the Procedure
- The proceeding begins with the appellant's request for an extension of the time for filing the appeal. Following the receipt of the request (see decision of December 5, 2024), the company's request to dismiss the appeal in limine was rejected due to the attachment of new documents that were not placed before the committee (see decision of December 14, 2024). Subsequently, the court rejected the appellant's request to summon a witness on his behalf, on the grounds that no exceptional reason was presented to justify this where this is an appeals proceeding in which testimonies are generally not heard, and the witness in question has not even been summoned to testify before the committee (see decision of December 18, 2024).
- At the same time, on December 18, 2024, the committee filed a motion to determine its status as a formal respondent in the appeal and accordingly exempt it from appearing and submitting a position in the appeal, on the grounds that it is a quasi-judicial body and therefore its decisions speak for themselves. After receiving the company's response, the committee's request was rejected in a decision dated January 7, 2025. On January 12, 2025, the Committee filed a motion for reconsideration of this decision, the request was rejected at that date, while it was determined that the Committee's arguments regarding its status in the proceeding were reserved with it and that it could decide whether it wished to submit a position, appear in the proceeding, or submit summaries.
- On January 13, 2024, a hearing was held before us in the presence of the parties, at the end of which the parties requested time to submit written argument supplements. Now that these have been collected into the file, we will now turn to a decision that requires a decision.
The main arguments of the parties in the appeal that are required for a decision
- In the framework of the appeal and the hearing before us, the appellant raised a number of main arguments: First, that the essence of the proceeding before us is an appeal against a quasi-judicial decision and not an appeal against an administrative decision as determined by the committee, and as a derivative of the scope of the tribunal's intervention in the committee's decision, is broader. The second argument is that the "special reasons" justifying the granting of a permit in accordance with the law are parallel to the reasons justifying the denial of severance pay from an employee, when this is not how the matter was examined by the committee. Third, the manner in which the committee conducted the proceedings was erroneous, since it did not allow for factual clarification, including hearing witnesses, and therefore the dismissal approval it gave should be revoked in light of the material flaw in its perception of itself as conducting an administrative proceeding of its nature. The appellant further argues that on the merits of the matter, the committee erred when it determined that it did not raise in 'real time' the claim of a connection between reserve service and dismissal, and that it also erred on the merits of the matter when it determined that the two conditions for granting such a permit for dismissal are met.
- In the framework of the completion of the argument submitted by the appellant's petitioner for three alternative remedies: a. Cancel the dismissal permit granted by the committee in light of the material flaws in the proceeding, in light of its perception of the proceeding as an administrative proceeding and not as a "quasi-judicial"; B. to return the discussion to the committee so that it can discuss it as a "quasi-judicial" procedure; III. Order the cancellation of the grounds on which the permit was granted and determine that they will not be possible to make use of them, including in existing proceedings and in future proceedings before various courts.
- With regard to the framework of the hearing of the appeal, the company argues that in its decisions to grant a dismissal permit under the law, the committee acts in its capacity as an administrative authority, and accordingly the grounds for intervention in its decisions are in the realm of administrative law. The company further argues that the committee's determination should not be interfered with because the appellant did not raise the claim of connection between the dismissal and reserve duty in real time, and that even on the merits of the matter, it appears that during his reserve service, the appellant continued to file claims, changed his representation several times, appeared for court hearings and even conducted negotiations for the purpose of signing the collective agreement with the company's employees. During the hearing before us, the company argued, in response to the appellant's arguments in this context, that the appellant's interpretation with regard to the substance of the special reasons required for the purpose of granting a permit should not be accepted, that the appellant did not file a claim regarding the alleged rights to which he was entitled and did not file an appeal regarding the committee's decision not to hear witnesses.
- In completing its argument, the company argued with respect to the nature and nature of the proceeding before the committee that whether it is an administrative proceeding or a quasi-judicial proceeding, this has no bearing on our case, since the appellant did not point to any ground justifying intervention in the committee's decision. Apart from this, the appellant was given all the opportunities in the committee to present his evidence and he has no complaint against himself for not doing so.
Discussion and Decision
- After hearing the arguments of the parties as presented in the hearing before us and reviewing the pleadings, the committee's decision and the supplements of the argument submitted on their behalf, we have reached the conclusion that the appeal should be dismissed. We will elaborate.
- Section 41A(a1) establishes the prohibition imposed on an employer to dismiss an employee who is on reserve duty:
"A factory owner shall not dismiss an employee because of his reserve service, his call for reserve service or his expected service in reserve service, including due to its frequency or duration (in this law - dismissal due to reserve service), and if they are fired, the dismissal is canceled."
- Section 41A(b) continues, inter alia (emphasis added, M.K.) -
"A factory owner shall not dismiss an employee during the period of his reserve service except with a permit from the Employment Committee; and in the case of reserve service that exceeds two consecutive days, he shall not be dismissed or impaired in the scope of his job or his income without such permit even during a period of thirty days after the end of his reserve service; The committee shall not grant a permit under this section, except for special reasons that will be recorded for which the dismissal or injury as aforesaid must be permitted, and only if the factory owner proves that the requested dismissal or injury is not due to reserve service, the committee will give its decision, to the extent possible, after the employee's response has been brought before it..."
- The law also states in section 26(b) regarding the procedures for hearing before the committee that:
"Employment committees will not be tied to the minutes of discussion and the laws of evidence, but will act in a way that they deem most useful for clarifying the controversial questions."
- At the outset, we did not find it necessary to decide the preliminary question raised by the parties, whether we are dealing with an appeal against a 'quasi-judicial' decision, or perhaps an appeal against an administrative decision. As can be seen from the committee's decision (p. 17), it was of the opinion that it was indeed a quasi-judicial tribunal, but the concrete procedure for granting a dismissal permit to an employee serving in the reserves is an "administrative proceeding in nature" and that in this respect the committee's authority is similar to that of the Commissioner of Women's Employment.
As stated, we do not believe that this point should be decided in the framework of the present case, and in this matter we will proceed from a 'strict' starting point, and thus we have warned ourselves, according to which we are dealing with an appeal against a quasi-judicial decision, as argued by the State's counsel in the hearing before us (see p. 12 of the transcript, lines 8-21), and as a result of this, the scope of possible intervention in the committee's decision is broader than an appeal against an administrative decision. Even in departing from this assumption, we find that there is no room to intervene in the decision of the committee before us. In this regard, reference may be made to the judgment of the National Court in the case of Iluz (Labor Appeal (National) 9953-11-13 Revital Iluz v. Zamira Golan, given on December 28, 2015), which dealt with the question of the scope of judicial review of the decision of the Commissioner of the Women's Employment Law. In the same matter, the National Court distinguished between the proceedings before the Commissioner and the proceedings before the Committee by virtue of the Discharged Soldiers Law, and held as follows: