Labor Appeal (National) 41179-01-24 Dr. Mark Friedman Ltd. – Revital Elkaner

Given on March 26, 2025

Attorney Dr.  Mark Friedman et al.  – Adv. Avner Ron

Adv. Revital Elkaner – Adv. David Bechor

Attorney for the New General Workers’ Union – Adv. Hannah Schnitzer, Adv. Maya Tzachor Aviram, Adv. Sivan Radian

Attorney for the Presidency of the Business Sector – Adv. Moti Azran

President Varda Wirth-Livne

"These are the waters of my beach.  Sailing in them is prohibited under the laws of privacy."

(From the poem "Garage Sale" by the late poet Moshe Dor)

1. We have before us an appeal and a counter-appeal against the judgment of the Tel Aviv Regional Labor Court (Judge Oren Segev and Public Representative, Ms. Irit Ayalon; Labor Dispute 29245-04-18) (hereinafter: the "Judgment"), in which the claim of the Appellant and the Counter-Respondent (hereinafter: " Elkner") against the Appellants and the Counter-Respondents (hereinafter: "the Employer") was partially accepted. As part of the judgment, the employer was obligated to pay severance pay in favor of Ms. Elkaner due to recognition of Ms. Elkaner's resignation as a result of the dismissal law, due to the installation of security cameras near her work station and due to the determination that this was a "tangible deterioration in the working conditions" in accordance with the provisions of section 11(a) of the Severance Pay Law, 5723-1963 (hereinafter: the "Severance Pay Law" or the "Law").
2. In this proceeding, we are addressed to the issue that in recent years has been preoccupying the labor courts and the economy in general even more intensely - namely the issue of the limits of a person's privacy in general and in the workplace in particular. The changing times and the technological developments that we have been experiencing in recent years emphasize this issue and raise the question - where does the boundary of a person's privacy in the workplace cross?
3. The facts relevant to our case
4. Elkaner worked for her employer for about 18 years, from September 7, 1999 until September 5, 2017, when she resigned due to her claim of a tangible deterioration of her employment conditions, in the circumstances as detailed below. Ms. Elkaner served in her last position at the employer as an office manager.
5. Appellant No. 2 (hereinafter: " Friedman") is the owner of Appellant No. 1 and served as Ms. Elkaner's direct manager for the entire period relevant to the proceeding.  The employer is a company that provides services in the field of intellectual property, including legal services.
6. We note, as the Regional Court also noted in the judgment, that the parties treated Dr. Friedman and Appellant 1 without any substantive distinction, and therefore we will treat the appellants together as employers.
7. During the period of Ms. Elkaner's employment, the parties signed employment agreements that were renewed from time to time, the last of which was signed in August 2012 and expired on April 30, 2016 and was not renewed, due to circumstances on which the parties disagree.
8. As noted, Ms. Elkaner's employment ended on September 5, 2017. This followed a letter sent on her behalf on July 23, 2017, in which she stated that she intended to sever the relationship between the parties due to her claims of disrespectful treatment towards her, which led, among other things, to the fact that her employment agreement was not renewed; due to the placement of cameras aimed at her work station; due to the insults she received from Dr.  Friedman; and due to additional circumstances that she chose not to elaborate in the said letter.
9. The parties' arguments in the Regional Court
10. According to Ms. Elkner, towards the end of her employment, there was a deterioration in the relationship between her and Dr. Friedman, which she claimed amounted to workplace abuse and was expressed, inter alia, in the deletion of hours in her attendance reports; deduction of work hours; shouting and humiliation that she experienced in the presence of other employees, and more (for details of all the claims, see paragraph 6 of the judgment).
11. Among other things, Ms. Elkaner claimed that as part of that abuse, two surveillance cameras were placed near her work station, one behind the work station and the other in front of her. All of these incidents, according to her, were done in an attempt to get her to resign from her job and were also reflected in the failure to renew her employment contract.
12. In light of the above, Ms. Elkaner claimed entitlement to severance pay, withholding of severance pay, compensation for abuse, and compensation for an unpaid bonus.
13. The employer claimed that due to Ms. Elkner's nature, she could not be abused at all, and all of her claims regarding the shouting she experienced from any of the employer's employees never occurred.
14. According to the employer, the placement of the cameras in the workplace stemmed from an allegation of sexual harassment by an employee who was subordinate to Ms. Elkaner against another employee of the company. After investigating the complaint and when it was not possible to reach clear conclusions, it was decided to place security cameras throughout the workplace, a total of 9 cameras, which were deployed throughout the office.
15. In light of this, Ms. Elkaner appealed to Dr. Friedman to remove the cameras, because she claimed that the very placement of the cameras in a way that filmed her 24-hour work station would constitute a deterioration of conditions and an invasion of privacy.  After discussions between the parties, Dr.  Friedman refused to remove the security cameras.
16. Following these events, Ms. Elkaner stopped performing her work, according to the employer, while during the period between July 16, 2017 and July 23, 2017, she was on a period of illness. Upon her return, Ms. Elkaner announced her resignation.

• The Regional Court's Judgment
  • 1. Severance pay

15. In its ruling, the Regional Court ruled that the very placement of the cameras, which in itself constitutes a tangible deterioration in the conditions of employment of an employee, regardless of the question of whether the installation of the cameras was legitimate and was done purely for practical considerations. In fact, the Regional Court's starting point was that the employer's conduct in installing the cameras was legitimate, but this did not prejudice Ms. Elkaner's right to resign in accordance with the provisions of Section 11(a) of the Severance Pay Law.
16. As part of the ruling, the main rulings relating to the right to privacy in general and the right to privacy in the workplace in particular were reviewed. The Regional Court, after examining the evidence in the case, including the photographs documenting Ms. Elkner's work station, found that the very placement of the cameras in the places where they were placed constitutes an infringement of privacy, relying on the provisions of section 2(3) of the Protection of Privacy Law, 5741-1981 (hereinafter: the "Protection of Privacy Law") and other references in case law and academic literature, as well as in various provisions of the executive branch relevant to our case.
17. After examining the legal situation, the Regional Court reviewed the evidence in the proceeding and found, among other things, that Ms. Elkaner had not been given a warning prior to the installation of the cameras, and that she had asked Dr. Friedman to correct what had been done, but that she had not responded to her request to remove the cameras.  Therefore, the Regional Court found that Ms. Elkaner's resignation was due to the installation of the cameras, and therefore her resignation should be regarded as a legal resignation from a dismissal.
18. In light of the above, it was determined that Ms. Elkaner is entitled to severance pay in the amount of ILS 426,474 (for details of the calculation, see paragraphs 29-32 of the judgment). As appears from the judgment, the parties were unable to prove the amount of the sums deposited in favor of Ms. Elkaner in her pension fund in the severance pay component, nor was it proven whether these sums were released in favor of Ms. Elkner.  Therefore, it was ruled that the employer must pay the sum as stated above, minus the sums that will be released in favor of Ms. Elkner, and that the parties will cooperate with each other in order to implement the judgment.
19. In addition, the Regional Court noted that it did not find a basis for awarding severance pay for withholding severance pay, since there was an honest and genuine dispute between the parties regarding the circumstances of the termination of Ms. Elkner's employment.
    • 2. Bullying
20. In the framework of the judgment, it was determined that Ms. Elkaner did not meet the evidentiary burden placed on her shoulders to prove that the incidents for which she claimed to be abused by the employer or any of her employees occurred. The court ruled that it had not been proven that the shouting incidents to which she claimed had occurred and that she did not support her claim with any evidence, as well as that her claims were general and without the detail required to decide this claim.
21. Similarly, her claims regarding the change of hours in the attendance reports or the deduction of the hours she performed were not proven. Moreover, it was held that even if her claims had been proven, this would not have been sufficient to base the claim of abuse on the basis of the aforesaid, since these do not amount to abuse in accordance with the rules set out in the case law.
22. As for the rest of her claims, both with regard to the recruitment of another employee in her place prior to the termination of her employment and with regard to the prevention of breaks and follow-up regarding her conduct during the workday, the Regional Court rejected these claims as well, since sufficient evidence was not presented to prove them.
23. As to the issue of non-renewal of the contract between the parties, it was determined that this was against the background of wage demands on the part of Ms. Elkaner that were not met by the employer, and therefore the non-renewal of the contract should not be regarded as abuse. Based on all of this, this claim component was dismissed.
    • 3. Bonus Payment
24. Elkaner claimed entitlement to a bonus of ILS 25,000 by virtue of her last employment contract, which expired in April 2016. In accordance with the employment contract, Ms. Elkaner was entitled to a bonus for completing 12 consecutive months of employment, counted from May of each year.  This entitlement continued even after the expiration of the contract, when the bonus was paid to her in May 2017 upon completion of an additional year of work.
25. The Regional Court rejected the claim for this component of the lawsuit, in light of the provisions of the contract that stipulate entitlement to a bonus only upon completion of 12 months of work. In other words, Ms. Elkaner resigned in September 2017 and thus did not complete her 12 months of employment for that year, and lost her entitlement to the bonus in accordance with the provisions of the employment contract.

Hence the appeals before us.

1. The Arguments of the Parties in the Appeals
   • 1. The Employer's Claims in the Appeal
2. In her appeal, the employer argued two main arguments regarding the determination that Ms. Elkaner's resignation constitutes a legal resignation from a dismissal as defined in the law: first, according to the employer, it was proven that Ms. Elkaner's resignation did not stem from the installation of the cameras; Second, the Regional Court's ruling in the judgment that even when the cameras were installed for legitimate reasons, it would establish a right to resign in the case of a dismissed, is an erroneous and excessively broad determination with broad implications for the entire economy.
3. With regard to the first claim, the employer claimed that the real reason for Ms. Elkaner's resignation stemmed from the employer's refusal to comply with her demands for an increase in her salary from ILS 23,000 to ILS 38,000. The employer bases its claim on the contradiction between Ms. Elkaner's claim that the cameras caused her mental and physical damage and the fact that she reported to work during the entire period of the notice.  According to the employer's approach, if there was truth in her statement that the placement of the cameras caused so much damage, she was unable to report to work for a period of 45 days of advance notice to which she was obligated by virtue of her employment contract (clause 35 of the employment agreement, which was attached as Appendix A to the statement of claim).
4. In addition, the employer noted that Ms. Elkaner's conduct after the date of termination of her employment was inconsistent with her own claim that she resigned following the installation of the cameras. The employer relied on her claim that after the termination of her employment, Ms. Elkaner contacted her employer, whether directly or through third parties, in an attempt to return to her work.  The employer claimed that to the extent that the placement of the cameras did indeed cause her injustice, as Ms. Elkaner claims, she was not willing to try to return to the workplace.
5. As to the second claim, the employer argued that the Regional Court's determination that the installation of cameras, even if it was done for legitimate reasons, would necessarily be considered a tangible deterioration in the terms of employment, is a comprehensive determination with a broad impact on the economy that is inconsistent with legislation, case law and regulatory provisions relating to the protection of privacy.
6. Thus, the employer argues that if the judgment remains in place, it will impair the employers' ability to fulfill their legal obligation to maintain a proper work environment. The employer argues that since she acted reasonably, proportionately, in good faith and transparency in placing the cameras, there was no reason to determine that this conduct was sufficient to lead to the conclusion that this was a tangible deterioration in the terms of Ms. Elkaner's employment in a manner that establishes her right to resign legally dismissed.
   • 2. Ms. Elkaner's arguments in the appeal and the counter-appeal
7. With regard to the main appeal, Ms. Elkaner supported her arguments mainly in the judgment of the Regional Court. In its summary, it reiterated its claim that the placement of the cameras in general, and in the circumstances and manner in which they were placed, including due to the location in which they were located, constituted a tangible deterioration in the conditions of her employment, and that the Regional Court ruled that she was entitled to severance pay in accordance with the provisions of the Severance Pay Law.
8. In the framework of the counter-appeal , Ms. Elkaner claimed that in a hearing held in the Regional Court, it was proven that she had experienced a series of abuse during the period of her employment, which included shouting from various elements in her employer, public humiliation, prevention of breaks, etc. She based her arguments on documents submitted as part of the proceeding, including an affidavit filed in the Regional Court, and on the minutes of the evidentiary hearing.
9. With regard to the bonus component, Ms. Elkaner argued that the Regional Court ignored Dr. Friedman's statement in the course of the evidentiary hearing, according to which the bonus component that was stipulated in the contract was not contingent on anything (page 21, line 8 of the transcript of the evidentiary hearing of September 21, 2022).  Therefore, Ms. Elkaner claims that since the employer did not pay the bonus for her last year of employment, she violated the terms of the contract.
10. In addition, with regard to the relief relating to the withholding of severance pay, Ms. Elkaner argued in general that she was entitled to this relief due to the delay in payment.
    • 3. The Employer's Arguments in the Counter-Appeal
11. The main arguments of the employer regarding the counter-appeal related to the fact that Ms. Elkaner's counter-appeal is an appeal against the factual determinations of the Regional Court. The employer argued in fact that these are determinations in which the appellate court is not inclined to intervene, except in extreme circumstances that do not exist in our case.
12. Positions submitted in the course of the proceeding
13. In light of the fundamental questions that arose in the framework of the proceeding, in my decision of May 23, 2024, the position of the Privacy Protection Authority was requested. On October 8, 2024, a notice was filed on behalf of the Privacy Protection Authority stating that in light of the precedents that are rooted in the labor courts, and inter alia, due to the tests set out inLabor Appeal (National) 90/08 Isakov - State of Israel - Commissioner of the Women's Employment Law (February 8, 2011) (hereinafter: "the Isakov case") and other rulings issued thereafter, the conditions for the Authority to appear are not met.
14. Subsequently, in accordance with the decision of November 18, 2024, the positions of the new General Workers' Union (hereinafter: the "Histadrut") and the Presidency of the Business Sector (hereinafter: the "Presidency") were requested.
15. In the framework of the decision, the parties were asked to focus on the question: "In what cases will the placement of cameras in the workplace, for reasons ostensibly justified from the employer's point of view, establish entitlement to severance pay for an employee who resigns due to the installation of the cameras?".
    • 1. The Histadrut's Position
16. In its position, the Histadrut argued that placing cameras in the workplace in a way that films the employee's position violates the right of the worker to "be left alone." A violation of this right to the Histadrut's position places that employee under the scope of section 11(a) of the Severance Pay Law, i.e., it constitutes a tangible deterioration in the conditions of his employment that allows him to resign legally dismissed.
17. As part of its position, the Histadrut noted that over the years, the labor courts have given an expansive interpretation to section 11(a) of the law, where the criterion by which the very existence of a tangible deterioration in employment conditions should be examined must be an objective criterion. The Histadrut's argument was based on the fact that the very placement of the cameras in a way that regularly photographs the employee while performing the work constitutes a profound change in the terms of his employment in a manner that meets the definition of the section.
18. As part of its position, the Histadrut referred to the amendment of the Law on the Installation of Cameras for the Protection of Toddlers in Toddler Daycare Centers, 5779-2018. In the framework of the proposed amendment to the law, which related to the possibility of online viewing for kindergarten parents, in a discussion in the Education, Culture and Sport Committee on June 24, 2024, it was argued by a representative of the Ministry of Labor, Ms. Lilach Naftali, that in the event that it is decided to open the kindergarten cameras to parents, the resignation of an employee in these circumstances should be considered as a resignation in accordance with section 11(a) of the law.
19. According to the Histadrut, despite the demand of the Ministry of Labor to insert an explicit clause relating to this, this clause did not find its place in the amendment to the law, ostensibly due to the agreement of the committee members that this addition was unnecessary, in light of the fact that the matter is self-evident.
20. In the framework of the hearing on the appeal held on December 24, 2024, the Histadrut noted in general that a distinction must be made between cases in which cameras are installed when an employee is already employed, and therefore the cameras are a change in the terms of his employment, and cases in which the cameras were installed before the employee began his employment. However, in the framework of the hearing, the Histadrut did not elaborate on how each of the cases should be addressed, and most of its arguments concerned employees who were already working for the employer at the time the cameras were installed (transcript of the hearing of December 24, 2024, page 14, lines 21-23).
    • 2. The Presidential Position
21. As part of its position, the Presidency argued that in legitimate cases of the installation of cameras in the workplace, when it is carried out in accordance with the law, there is no reason to recognize the resignation of an employee due to the installation of the cameras as a legal resignation of a dismissed. In addition, the presidency further argued that the burden of proving that the installation of the cameras was done in violation of the law rests on the shoulders of the employee who claims to do so.
22. The Presidency based its position mainly on the ruling of the National Labor Court in the Isakov case and on the guidelines of the Registrar of Databases 4/2012 and 5/17. According to her, when reading the words brought there, it can be seen that it was determined that sanctions would be imposed on an employer only when his actions disproportionately deviated from his duties to protect the employee's privacy in the workplace.

Discussion and Decision

46. We will preface by stating that after we have considered the written and oral arguments of the parties, we have reached the conclusion that the appeal and the counter-appeal should be dismissed, as will be detailed below.
47. Normative background
    • 1. The right to privacy
48. The right to privacy has been recognized in Israeli law as a constitutional human right. Section 7 of the Basic Law: Human Dignity and Liberty, entitled "Privacy and Privacy of the Individual", states as follows:

“)a) Every person is entitled to privacy and the privacy of his life."

48. More than a decade prior to the enactment of the Basic Law: Human Dignity and Liberty, the Israeli legislature established a comprehensive statutory arrangement for the protection of the right to privacy within the framework of the Protection of Privacy Law, 5741-1981 (hereinafter: the "Protection of Privacy Law"), where it was determined that "invasion of privacy" as defined in section 2 of the Protection of Privacy Law constitutes a civil tort and therefore the provisions of the Torts Ordinance will apply to it.
49. The Supreme Court has long emphasized the importance of the right to privacy, and this has often been referred to in its rulings as a right of the highest order. Thus, for example, in criminal appeal proceedings 5026/97 Gilam v.  State of Israel (June 13, 1999) (hereinafter: "the Gilam case"), the Supreme Court noted the importance and vitality of the right, saying that the right to privacy "is one of the freedoms that shape the character of the regime in Israel as a democratic regime, and it is one of the supreme rights that establish the dignity and liberty to which a person is entitled as a human being, as a value in itself." Moreover, President (ret.) Aharon Barak noted the importance of the right, saying that it is "one of the most important human rights in Israel" [see: Criminal Appeal 1302/92 State of Israel v.  Nahmias, IsrSC 49(3) 309 (1995); High Court of Justice 6650/04 Anonymous v.  Netanya Regional Rabbinical Court (May 14, 2006).  For more information, see: The Gilam Case; High Court of Justice 884/06 University of Haifa v.    Avraham Oz, IsrSC 62(4) 167 (2008); Civil Appeal 8825/03 Clalit Health Services v.  Ministry of Defense (April 11, 2007)].
50. We will add and note that the right to privacy appears in various and additional pieces of legislation and is not covered only by the words of the legislation that we discussed above. In this regard, the words of Justice (as he was then called) Uzi Fogelman are beautiful and correct, when he said:

"Against the background of this nature, the right to privacy has been given various definitions in the literature, beginning with the early definition of privacy as the right of a person to be left alone (Samuel Warren & Louis D.  Brandeis “The Right to Privacy” 4 Harv.  L.  Rev.  193 (1980)); Continuing with the approach of Prof.  Westin, who defined the right as an expression of a person's control over the scope of the flow of information to him (Alan F.  Westin Privacy and Freedom, 7 (1967); Birnhack's book, pp.  89-108; and to Prof.  Gavison's position, which saw the right as an expression of limiting the access of others to the individual's domain (Ruth Gavison, "The Right to Privacy and Dignity," Collection of Essays in Memory of H.  Shelah (1988)).  Over the years, the legal content of the right has been poured into the case law" [see: paragraph 34 of his opinion in the High Court of Justice 6824/07 Dr.  Adel Manna v.  Tax Authority, IsrSC 66(2) 479 (2010)].

51. The scope of the right was discussed by President (ret.) Aharon Barak when he said:

"The scope of the constitutional right to privacy will be determined according to the interpretation of the provision of section 7 B of the Basic Law: Human Dignity and Liberty.  Various aspects, and wide areas of [...] Indeed, "the right to privacy is a complex right whose boundaries are not easy to determine" [...] We do not need, with regard to the petition before us, to elaborate on this matter.  Suffice it to point out that the right to privacy - like the right to human dignity to which it is closely related - is based on the autonomy of the individual [...] "Recognition of privacy is the recognition of a person as an autonomous individual entitled to uniqueness vis-à-vis others.  It is this uniqueness that allows a person to entrench himself in his personality as having meaning worthy of honor" [...] "The issue of the private right is...  In a person's personal interest in developing his autonomy, in his peace of mind, in his right to be with himself, and in his right to dignity and freedom" [...] Privacy is intended to allow the individual to have a "sphere of life" in which he determines his or her conduct without the involvement of society.  In this area, a person is with himself.  This is "the right to be left alone" [see: paragraph 10 of his opinion in High Court of Justice 6650/04 Anonymous v.  Netanya Regional Rabbinical Court (May 14, 2006) and the references in the original].

52. In my article for President Shamgar's book, I noted the uniqueness of the right to privacy:

"By its very nature, privacy, as a concept, encompasses a very wide range of interests, issues and situations.  Privacy includes, among other things, the following issues: the right of a person to decide what will be done with his body, what will be done in his life, what information he will give about himself and to whom.  Therefore, it is difficult to find a single definition that exhausts the essence of the right to privacy" [Varda Wirth-Livneh, "The Right to Privacy vs.  Managerial Responsibility in Screening Job Candidates - The Legal Aspect," Shamgar Book, Part III, 775, 778 (2003)].

• 2. Privacy in the workplace

53. The Protection of Privacy Law instructs us as follows in section 1:

"A person shall not violate the privacy of another without his consent."