In this context, we note that section 18 ofthe Protection of Privacy Law enumerates various reasons by which the offender can defend himself in a trial, to the extent that he is able to prove one reason or another, i.e., it is not an absolute right.
- An employee's right to privacy in his workplace was described in the Isakov case in the comprehensive opinion of Judge (as described at the time) Nili Arad as follows:
"In light of the increased obligations that apply to the parties to the employment relationship, the labor law reaffirms the constitutional-objective value of the employee's privacy. The need to protect the employee's right to privacy in the workplace, including his privacy in information in the context of the use of computers and communication and information technologies, stems mainly from the inherent power gaps in the relationship between the parties and the labor relationship; From the recognition of the reality that the employee is in the workplace for a significant part of the day, and sometimes even of the day; the mixing of fields and the increasingly blurred distinction between the employee's life at work and outside it; and the nature of employment relations based on mutual trust and the employee's performance within them (see: The Employment Practices Code, June 2005, part 3 monitoring at work, p. 54). In this context, it is necessary to protect the employee's privacy in the workplace, even as a barrier against infringement of the right to equality and protection against discrimination on improper grounds [...] In certain circumstances and subject to the needs of the employer, the employee's workplace and work environment may be considered his private space, protected by the constitutional-objective value of privacy" (paragraph 12 of its opinion in the Isakov case) and the references therein; Emphasis in the original - V.O.L.).
- This court has repeatedly reiterated the principles rooted in labor law, which deal with the manner in which the employer's managerial prerogative is exercised. It should be clarified that the employer's managerial prerogative is subject to the requirements of reasonableness, proportionality, fairness and good faith. In addition, it was determined that the employee's right to privacy in his workplace gives him "control over the disclosure of information about him and the prevention of tracing. For surveillance of the employee in the workplace [...] may cause a violation of the employee's human dignity, privacy, and autonomy" (see: paragraph 11 in the Isakov case).
- The basic concepts of labor law recognize the vital need to protect the employee's right to privacy in his workplace and in general. On the essence of the right in this matter, it was held:
"The inherent power disparities in the relations between the parties and the labor relations; From the recognition of the reality that the employee is in the workplace for a significant part of the day, and sometimes even of the day; the mixing of fields and the increasingly blurred distinction between the employee's life at work and outside it; and the nature of the employment relationship, which is based on mutual trust and the employee's performance within them. At the same time, it is necessary to protect the employee's privacy in the workplace, even as a barrier against infringement of the right to equality and protection against discrimination on improper grounds" (see: paragraph 12 in the Isakov case).
- The right to privacy as aforesaid is not an absolute right, and the same applies to the employee's right to privacy in the workplace. The court must balance it against the employer's proprietary right, as well as its managerial prerogative. The balance between rights is determined according to the nature of the work, the requirements of the job and the work environment. My colleague, Justice (as he was then called) Ilan Itach, discussed the task of balancing at length:
"The court insisted that an employee's right to privacy in the workplace is not absolute and must be balanced against the employer's property right and his managerial right in the workplace, which include requirements for "comprehensive information about the employee in all areas of his life, as a condition for his acceptance to work, during the performance of the work and for its needs." The balance must be drawn "taking into account the nature and nature of the work, the requirements and nature of the job, the work environment, the general policy in the workplace, and the need to protect against offenses and damages on the part of the employee." (Paragraph 111 of his opinion onCollective Dispute (National) 7541-04-14 The New General Workers' Union - Southern Triangle Area - Qalansawa Municipality (March 15, 2017) (hereinafter: the "Qalansawa Case") and the references therein; Emphasis in the original - V.O.L.).
- The late Vice President Elisheva Barak-Ossoskin noted the violation of the employee's privacy as follows:
"The duty of disclosure in employment relations is increased. It is not absolute, not in negotiations between individuals for hiring or even in negotiations by way of a tender. The duty of disclosure violates the privacy of the potential employee, the job candidate, and the privacy of the employer. Two opposing interests are facing each other. It is in the interest of the employee and the potential employer not to be required to answer questions that violate their privacy and are not relevant to the proposed work, and on the other hand, it is in the interest of the parties to create an optimal workplace and work in optimal conditions, both in terms of efficiency and in terms of the atmosphere and labor relations. Therefore, we must balance the need to disclose the relevant maximum and protect the privacy of the employee and the employer. The right balance will be made by allowing only questions that are relevant to the nature of the relationship that is about to be created. The criterion for examining the balance between the requirement of disclosure and the right to privacy must be an objective criterion. I will examine the different types of disclosures that a job candidate faces" [Elisheva Barak-Osuskin, "The Principle of Good Faith in Labor Law," Berenson, vol. 2, pp. 499, 510 (2000)].