From the general to the individual
- We must decide the question of whether the plaintiff's disability led to the decision or whether it was one of the considerations that the defendant considered prior to the plaintiff's dismissal.
- We will preface by noting that the defendant was obligated to act within the framework of the certificates provided by the plaintiff on behalf of the occupational doctor. As it appears from the medical certificates, the defendant had to employ the plaintiff in morning shifts only, and later she was also required to find an alternative/position that was also compatible with the additional requirement that was expressed in the third certificate "to refrain from physical work that includes lifting heavy loads".
- In accordance with the customary rule, the question of the existence of a duty to locate a suitable alternative for an employee who can no longer fulfill his previous position, and the characteristics of that obligation, it was determined that this is not necessarily a consequential obligation, but rather an obligation to make an effort. The intention is to locate an alternative role with proper and reasonable diligence, with the scope of the effort varying from case to case. The duty to make an effort must be within the limits of reasonable effort in the circumstances of the case.
- In the substantive aspect, it is necessary to examine whether there is indeed a relevant alternative position, while examining the employer's considerations, including the needs of the organization, the supply of available positions, the employee's suitability for the position in light of his skills and limitations, and the effect of filling the position on the fabric of the employment relationship. In accordance with the managerial prerogative, the final decision is in the hands of the employer to the extent that a suitable position is found. It is not easy for the court to intervene in the discretion of the employer, unless it is convinced that the failure to offer the position to the employee does indeed deviate from the scope of reasonable managerial prerogative.
- In our case, it is necessary to examine whether an honest and serious procedure was conducted to examine the existence of an alternative position, with the participation of the plaintiff and an opportunity to point out alternative positions.
- After hearing the plaintiff and the defendant's representative, it emerges that the defendant conducted the proceeding in good faith, with the limitations as arose from the occupational doctor's approvals. We were under the impression that the plaintiff was offered reasonable alternatives that were consistent with his limitations, and we were mainly persuaded that the defendant did everything in its power to enable his continued employment in the same alternative solutions that were offered to him. The proceedings of the two hearings were preceded by conversations with the plaintiff, which even yielded a positive result, whereby the defendant responded without delay to the required adjustment and thus allowed him to integrate only in the morning shifts, according to the plaintiff's wishes and in accordance with the first approval of June 16, 2021.
- The same is true later on. After the second confirmation was presented, the plaintiff was summoned to a first hearing on October 24, 2021, while it was clarified to him in the last paragraph of the minutes
"In your role as a transporter, there is no work only in the morning... We really appreciate your work and that's why we're trying to solve and address your limitation... What would you like it to be? What can you do?"
- During that hearing, the plaintiff asked to work in the morning, noting that if the doctor did not decide otherwise, he believed he would return to shifts. In other words, the defendant respected the plaintiff's wishes and, with an understanding of his situation, accepted his request in full. Indeed, the plaintiff continued to be employed in morning shifts only in accordance with the certificate he attached, until January 17, 2022. The plaintiff, in his fairness, even confirmed in the summary of the hearing (paragraph 5) that this was agreed upon by him and at his request (see: Appendix B to Elad's affidavit)
- The defendant did not say enough, and even after she was presented with a third certificate, this time the approval reflects another recommendation to refrain from strenuous work that includes lifting loads. To this end, she summoned the plaintiff to another hearing, immediately and immediately after receiving the third confirmation on February 15, 2022, and this time, in addition to his occupation "in morning shifts only", he was also offered a position as a pallet in the morning and as a transporter on standby in case of need. The plaintiff refused. While emphasizing "... I'm not in a position to lift anything, even if it's easy." As argued above, the defendant is not obligated to reach the result of a placement in a particular position that corresponds to the employee's limitations, but rather to try to offer a suitable position, provided that it is done in good faith and in a willing soul. When we reached this point, we were under the impression that the defendant acted within the framework of the restrictions that were gradually added from approval to approval by the occupational doctor, and every time an additional recommendation was added, the defendant tried to adapt the position in accordance with the objective limitations.
- The witness (Mr. Elad) on behalf of the defendant left a very reliable impression. We were under the impression that he was willing to continue employing the plaintiff and to make the adjustments in the change of positions and the types of shifts, subject to the defendant giving his consent. The offers offered to him included tasks with minimal physical involvement, but the plaintiff chose for his own reasons to deny the alternatives offered to him. This was the case when he was offered to serve as a pallet and transporter, and so he remained in his refusal even when he was offered a position in the "round" department , where he worked only in the morning shift and in relatively light work. We were not under the impression that Mr. Elad acted in bad faith.
The opposite is true. Throughout the process, he took into account the plaintiff's medical condition and limitations, and with sensitivity to his professional abilities. The impression left by the plaintiff after we heard his testimony was that he had decided to terminate his employment despite the alternatives offered to him. This is puzzling, especially after his employment ended, and after a few months, he began working as a forklift operator in another place, and the question arises whether the position as a forklift operator does not involve at least as much physical effort as the one offered to him in the various positions on the eve of the termination of his employment.
- As to the claim that the defendant knew about his health condition – we note that we have not found any objective basis that indicates the knowledge of the party who according to the claimant contacted him (Aryeh). To this, we will add that there was nothing to prevent Aryeh from asking for an affidavit and summoning him to testify. Failure to bring a relevant witness raises, by nature, the suspicion that there is something wrong with him, and that a party who refrains from bringing a witness is afraid of his testimony and his exposure to cross-examination, so that an assumption is created to the detriment of that party's version (see Civil Appeal 641/87 Kluger v. Israel Tractor Company and Zion in Tax Appeal 239(1) 245 (1990)). In this regard, the words of the Honorable Justice Y. Maltz in Other Municipality Applications 55/89 Koppel (Self-Driving) in a Tax Appeal v. Telcar Tax Appeal Company 44(4) 595 603 (1990) are appropriate:
"The rule that the court has adopted since time immemorial, which is placed in its possession, is that it should not withhold evidence in its favor from the court, and if it refrains from bringing relevant evidence that is within its reach and he has no reasonable explanation for it, it can be concluded that if the evidence had been brought, it would have acted against him."