Labor Dispute (Tel Aviv) 55553-06-22 Guardianship.BC Technologies Ltd. – Coral Ghibli - part 6

Defamation

101. According to the employees, prior to the filing of the main lawsuit, the company sent employees 1-5 letters of threat with serious false accusations, insinuations and baseless speculation, on the basis of which it demanded excessive and baseless financial compensation. The company was not satisfied with this and sent the same threatening letters to their new employer – Medetech.
102. According to the employees, the statements in the warning letters, including the following statement, constitute defamation:

"To the company's astonishment, it recently learned that you are acting behind her back and seriously undermining her, in violation of the law and your employment agreement!!"; that you were a parable and/or solicited to leave the company"; That "you are making use of the Company's confidential information": that "for many months, preceding the termination of your employment, you have been undermining the Company and preparing to terminate your employment with the Company".

103. Employees 1-5 filed their claim for compensation for defamation in the amount of NIS 60,000 each and NIS 300,000 in the business districts.
104. According to the company, this is a warning letter to Medatech before legal proceedings are taken, and therefore cannot constitute defamation. The letter is addressed to one recipient – the Medatech company – and there is not a single element that grants the right to sue for any wrongdoing.  There is no "publication" in writing, and in any case what is stated in it is true.
105. The Prohibition of Defamation Law is intended to protect a person's honor and good name by prohibiting publication that may humiliate, humiliate or harm him. This is subject to the restrictions set forth in the law.
106. In accordance with court rulings, the existence of defamation is examined in four stages^[65]: in the first stage, the expression must be interpreted in an objective context, and the meaning that arises from it must be derived, according to the standards accepted by a reasonable person. This interpretation should be based both on the simple meaning of the explicit words of the publication, and on what is stated "between its lines", as this entirety is likely to be accepted and interpreted by a reasonable person.  In the second stage, it is necessary to ascertain whether the expression constitutes defamation and whether the expression was indeed published, in accordance  with sections 1 and 2 of the Law; in the third stage, it is necessary to ascertain whether the advertiser has one or more of the protections listed in  sections 13-15 of the Law; in the fourth stage, if the publication fulfills the conditions of the previous three stages, the question of remedies is examined, including the question of proper compensation for the plaintiff.
107. The examination of the above four stages is conducted with a balance between the right to a good name and privacy and the right to freedom of expression, rights that are protected as part of human dignity under the Basic Law: Human Dignity and Liberty.  This balance is deeply embedded in the framework of the law, both for the purpose of clarifying the question of liability and for the purpose of estimating the damage.  This balance affects the interpretation of the provisions of the law and the way in which it is applied in all contexts^[66].
108. In a system of employment relations, there are additional values that must be taken into account when implementing the Law, in view of the unique characteristics of the employment relationship, for which the unique jurisdiction of the Labor Court has even been granted. In the ruling of the National Court, it was determined that the workplace is a place where it is important to ensure open discourse, transparency, maximum sharing and disclosure.  It was held that part of this also relates to the right, and duty, of the supervisor to make comments to his employees, to conduct periodic evaluations of his employees, and to conduct audits of their functioning, without being accompanied by a cloud of constant fear of lawsuits.  It was further held that consideration should be given to the fact that in the workplace things are sometimes said out of momentary anger or a storm of emotions in the face of work pressure, and that not every insult should be treated as defamation in the legal sense, and it is possible in this context even to defend trivial^[67]
109. At the same time, it was determined that the increased duties of good faith imposed on the parties to an employment contract must be taken into account; the power disparities that usually exist between an employee and his supervisor; and the significant impact that a supervisor's statements may have in certain circumstances. Therefore, it was held that both parties to the employment relationship – as part of their duty to treat each other fairly and in good faith – must be careful with respect for each other, while maintaining proportionality and reasonableness^[68].
110. Thus, the Prohibition of Defamation Law should be interpreted in the context of employment relations, in a way that will protect the values underlying the law, but without harming the delicate fabric of the relationship in the workplace, and without creating excessive "judgment" of any expression.  The balances in this regard may change from period to period and from context to context^[69].
111. After examining all the arguments of the parties, we have come to the conclusion that the employees have no cause of action by virtue of the Prohibition of Defamation Law.  First, the warning letter sent by FBC to Medatech – the employees' current employer – does not, in our view, constitute "defamatory publication" within the meaning of the law.  This is a legal document that was sent prior to taking proceedings, which is intended to protect FBC's legal rights  and prevent, in its view, a violation of binding agreements and legal provisions.  Second, even if it is determined that it is an advertisement, it was directed only to Medatech – as someone who may be an accomplice to the alleged violations – and was not intended to humiliate or humiliate the employees.  Third, in the circumstances of the case, FBC  has the protections set forth in the law, in particular the protection of good faith as well as the protection of "truth in advertising", since the things stated in the warning letter relate to its alleged right to enforce contractual clauses prohibiting improper competition and the use of trade secrets.
112. In view of the foregoing, the claim for compensation for defamation is hereby dismissed.
113. As for the requirement to deliver Forms 161 to employees 1-6.  We are unable to determine whether or not these documents were provided.  In any event, we were not presented with a copy of the documents.  Therefore, the company will provide the plaintiffs with Forms 161 as required by law, within 30 days.
114. In the circumstances of the case, we found no basis for the employees' demand that the company be obligated to pay Helena compensation in this matter, and the claim in this matter is dismissed.

Conclusion

115. In view of the aforesaid, the claim and the counterclaim are hereby dismissed in all their components, except for the following:
116. The Company will pay Employee 1 the sum of NIS 4,212 for unlawful deduction from her salary plus shekel interest as of March 24, 2022 until the date of the actual full payment;
117. The Company will pay Employee 1 compensation for non-deposit to the study fund in the sum of NIS 1,675 plus NIS interest as of February 11, 2022 (half of the period) until the date of the actual full payment;

• The Company will pay Employee 2 the sum of NIS 6,318 for unlawful deduction from her salary plus shekel interest as of March 24, 2022 until the date of the actual full payment;

161. The company will provide employees with Forms 161.
162. The company will fulfill its obligations under the judgment within 30 days from the date of receipt of the judgment.
163. Taking into account the result we have reached, the claim and the counterclaim have been largely dismissed, and each party will bear its own expenses.
164. Appealing this judgment is by right. An appeal can be submitted to the National Labor Court in Jerusalem within 30 days of the judgment being served on the side of the applicant to appeal.

The Secretariat will provide the judgment to the parties.