Labor Dispute (Beer Sheva) 26516-06-22 Reuven Moshe Sasson – Financial Case – Upper Cloth Massuot Yitzhak Ltd. - part 2

Summary of the plaintiff's arguments

11. When the provision of section 8(a)5 of the Equal Rights for Persons with Disabilities Law, 5758-1998 (hereinafter: the "Equality Law") was violated, his dismissal was discriminated against in light of his disability, and therefore, the defendant must be charged the sum of NIS 50,000 for non-pecuniary damages.
12. The defendant was aware of the plaintiff's disability and did not prove that the plaintiff was not fired due to his disability and without being given the opportunity to work in any other reasonable job, and without offering him other reasonable alternatives that would enable his continued employment.
13. Around March 2021, the plaintiff suffered a cardiac event and had to undergo two catheterizations, for which he had to take several sick days until he returned to work in June 2021. The incident occurred to the plaintiff during the defendant's transportation that picked up the defendant's employees, including the plaintiff, from their area of residence to the factory.
14. The plaintiff informed his direct manager by phone, informing him that he was experiencing a heart attack and would have to take sick days until he recovered and returned to work. In the case before us, according to the claim, there can be no dispute that the plaintiff is a person with a disability who experienced a cardiac event and provided the defendant with certificates from an occupational doctor attesting to his disability and the accommodations and accommodations required for him in order to continue working for the defendant.
15. The reason for the dismissal is the plaintiff's limitation from working night and night shifts. The plaintiff was summoned to two  hearings: on October 19, 2021, the plaintiff was summoned to the first hearing.  In the summons to the hearing, one and only claim is made against the plaintiff, and that is his limitation to perform his work in shifts.  On February 13, 2022, the plaintiff was summoned to a second hearing in which the defendant reiterated her only claim, against the plaintiff, that he was limited to performing his shift work.  It can be seen from the minutes of the hearing that the defendant's claims relate only to the plaintiff's disability to work shifts.
16. The defendant confirms that the plaintiff was a dedicated and loyal employee and that there was no complaint against him and that the only reason for his dismissal was his limitation to work shifts. The plaintiff received the certificates of appraisal attesting to the defendant's satisfaction with the plaintiff.
17. The plaintiff did not offer the plaintiff a work alternative that was compatible with his disability. The plaintiff's job in the defendant was to "transport" as part of his job, he drove a mini-forklift and by pressing buttons on the forklift, he would cause the forklift to lift pallets and move them from place to place, the work of the conveyor is not physical work.
18. As part of the occupational doctor's certificates that were provided to the defendant, she had to find an alternative that did not involve heavy lifting and pressure reduction, while the work would be carried out in the morning shift only. The only alternative offered to the plaintiff is to work as a pallet, and not two alternatives as the defendant claims.  This is an unreasonable proposal that does not correspond to his medical condition and contravenes section 8 of the Equality Law.  The plaintiff objected to the proposal since it involved physical labor that involved heavy lifting.

Summary of the defendant's arguments

19. Preliminary argument – The plaintiff did not bother to point out that his claim to the National Insurance Institute for recognition of work injury benefits was rejected by the National Insurance Institute, a fact that strengthens the defendant's claims.
20. The defendant acted in accordance with the certificates presented by the plaintiff on behalf of the occupational doctor. acted in good faith to find alternative solutions for his continued employment, in accordance with the restrictions recommended for him.  She held several conversations with the plaintiff as well as two hearing calls, in which she examined and proposed various alternatives.  The plaintiff refused all the alternatives offered to him, and therefore the defendant was left with no choice but to terminate his employment in accordance with the law and after all his rights had been completed.
21. As to the claim that the defendant knew about his medical condition, the defendant denies it. The first time the defendant was exposed to his medical condition as one that required leniency was when he presented that the plaintiff should be allowed to work without night shifts.  The medical certificate did not include any medical diagnosis and/or mention of the word "heart", "heart attack", etc.  According to the plaintiff, he called Aryeh while he was on the bus on his way to work and informed him that he had suffered a heart attack.  This is a statement that does not reflect a reality that amounts to a lie.  Aryeh was never informed about the heart attack that the plaintiff experienced.  Aryeh tells of an  SMS message sent by the plaintiff (referring to the screenshot of the correspondence.  It should be noted that even when Aryeh and two other employees traveled to visit the plaintiff in the hospital when he was hospitalized, they were not told by the plaintiff of the fact that he was after a heart attack or a similar connection.  This amounts to blatantly distorting facts.  The statement that was written in the hearing that "you were with us about six months ago after a heart health event" was made in the second hearing that was made at the end of 2021, and hence the timetables of about six months (from June 16, 2021 until the date of the hearing towards the end of 2021) and it is based on a lack of information.
22. Despite the plaintiff's statements regarding his alleged disability, the plaintiff began working as a forklift worker a few months after the date of termination of his employment with the defendant. This is the place to raise the question of whether the role of a forklift lifter does not involve even the slightest physical effort.  This is puzzling.
23. With regard to the claim of discrimination on the basis of age, the plaintiff's statements that his age was a consideration in the framework of terminating his employment are distorted and have no truth. The age of an employee was never a consideration for the defendant.
24. The plaintiff presented three certificates from an occupational doctor at intervals of 3-4 months, stating recommendations regarding his continued work without night shifts and later also without afternoon shifts. The plaintiff tries in a contemplative way and does not pay attention throughout the lawsuit and the summaries to make blatant use of the occupational doctor's recommendations as "limitations" and even emphasizes and emphasizes the word "my limitation every time...", which was said during the two hearings and interprets it as a determination that the defendant knew what the plaintiff was suffering from.  This is outrageous and has no truth in it.  The use of the word "limitation" and its inflections is nothing more than a reference to the defendant's inability to continue working night and/or afternoon shifts later on.
25. The only reason for his dismissal was the lack of an alternative that matched his skills and especially the plaintiff's wishes. The defendant is a manufacturing factory.  The vast majority of its employees are workers in production floor positions such as machine operators, packers, palletizers, conveyors, quality controllers, technicians, electricians, forklifters, farm workers and guards.  All of these involve a certain amount of physical effort.  Obtaining visits to occupational physicians is a routine thing for the defendant.  There are cases in which this is not possible in terms of the vacant positions or in terms of the desire of the employee, who refuses the offers.
26. The defendant is crying out for employees in all the positions mentioned above, and has tried in every possible way to keep the plaintiff as an employee employed by the defendant, subject to the medical approvals and restrictions. The defendant is unable to respond to every request by inventing standards and positions that do not exist and/or are not available, thereby increasing its expenses and the number of its employees and employing employees in positions unnecessarily and beyond the manpower standards required by it.  This is an unreasonable burden given the fact that close to 90% of its employees are in production floor positions with physical involvement.
27. In our case, the defendant continued to employ the plaintiff for a long period of time, from the first day of his absence, through his prolonged absence until his return, and the receipt of the occupational doctor's recommendations and their implementation by her, and did not rush to terminate his employment, and even considered various alternatives through two hearing calls. Only after the conditions for the plaintiff's continued employment were tightened, and because he refused any attempt at any other employment, was the decision to terminate his employment made.
28. The plaintiff was offered various positions: the defendant respected the recommendations of the occupational physician for the first and second time, and afterwards, in the second hearing the plaintiff was offered to be employed as a countertop in the morning shift, the plaintiff refused. The plaintiff was also offered a job in the "round" department.  This is a department in which wipes products are packaged only in the morning shift and is considered lighter, the plaintiff refused.  Another attempt to offer him a job on the "small lines" combined with transportation assistance was also unsuccessful, and the plaintiff again refused.
29. The production manager asked the plaintiff to give the plaintiff a chance and try the proposed position, and if he did not succeed, another alternative would be examined - the plaintiff refused to do this outline as well.
30. To be precise, the plaintiff all along, on the one hand, says that he cannot engage in a physical thing, such as pointing to a complete loss of capacity, but on the other hand, he wishes to work in the transportation department in the role of transportation, since there is also physical work as a built-in part of the job throughout the shift. The job involves getting off the conveyor and performing "shrink" actions - wrapping nylon in a huge roll around the produce and that the conveyor must lift the heavy plastic roll and "dress" it on the shrink machine.  This is a physical task and it seems that the plaintiff is trying to hold the stick at both ends, to design a role in circumstances that do not exist and while building a job definition that does not exist.
31. The plaintiff noted well in the hearing that he was unable to raise anything. "I'm not in a position to pick up anything, even if it's easy."  It is not clear how he asked to fill the position of transporter full-time, since as stated, it also contains physical effort involved in lifting loads.

The Normative Framework

32. Chapter D of the Equality Law deals with discrimination in employment, and establishes in section 8 the prohibition of discrimination against a person with a disability. Relevant to our purposes is the provision of section 8 of the Equality Law, which provides as follows:

"(a) An employer shall not discriminate between its employees or job seekers, because of their disability, provided that they are qualified for the position or position in question, in any of the following: