In the Schwartz case, the Supreme Court ruled in the matter of failure to bring a relevant witness or evidence as follows:
"Sometimes, the way a party conducts his case in court has evidentiary significance, similar to circumstantial evidence, and it is possible to give evidentiary significance to the failure to submit evidence. Conduct such as this, in the absence of a reliable and reasonable explanation, acts in accordance with the duty of the person who takes it, since it establishes in fact a presumption of fact, which is rooted in logic and life experience, according to which the law of abstention is like an admission that if the same evidence had been brought, it would have acted in accordance with the duty of the abstainer and supported the opponent's version. In this way, in effect, evidentiary weight is given to the evidence that was not brought. When a party has a reasonable and reliable explanation for the non-testimony of a witness on his behalf or for his failure to provide evidence, the explanation will omit the basis under the existence of the presumption that was created for his duty due to the failure to bring evidence."
- In our case, the plaintiff did not invent any explanation, of one kind or another, for not summoning Aryeh as a witness on his behalf. After the plaintiff emphasized that when the cardiac event occurred on the bus, he informed his manager, Aryeh. Aryeh's non-testimony should be interpreted to the detriment of the credibility of the plaintiff's version, which even remained as the sole testimony of a litigant.
- On the other hand, the defendant noted that after the matter was clarified with Aryeh, who served as his indirect manager, a picture emerges that does not match the plaintiff's version, from which it appears that Aryeh confirms the existence of an SMS message that the plaintiff sent to him in the middle of the night of March 18, 2021 at 3:32 a.m., and the same correspondence was attached to the defendant's summaries.
- We also got the impression that the reason for terminating the plaintiff's employment was due to the lack of an alternative that matched his skills, along with the plaintiff's stubborn refusal not to accept or at least try for a certain period of time the alternative that was offered to him. Considering that this is a factory where most of its workers are from the production floor, the possible roles embody a certain degree of physical involvement, which sometimes requires a certain amount of effort. Adjustments to the position so that they conform to the occupational doctor's approval are always within the objective limitations of the employer's environment and the nature of the work. Sometimes it is possible to find the path that combines the fulfillment of the recommendations of the occupational physician and the continuation of the employment that meets the employee's wishes, and sometimes it is not possible, due to unavailable positions or as happened in our case due to the refusal of any of the offers offered to him.
- We were also under the impression that the defendant is crying out for employees in all the positions mentioned above, and taking into account that 90% of the defendant's employees are engaged in various positions that require a certain degree of physical effort.
- The defendant did not act to terminate the employment relationship with the plaintiff during the course of the proceeding, out of a desire to fully examine the possibility of employing him in an alternative position that is compatible with his limitations. Even after it became clear that a certain position did not suit his wishes, there was at least room to try for a certain period of time the other alternative role as a surface or in the "round" department. Only after it became clear that the plaintiff's medical condition had worsened and he sought to locate a position without even the slightest effort, did the defendant decide to terminate his employment on the basis of the plaintiff's medical condition and his inability to serve in one of the proposed positions.
- The plaintiff did not lift the burden in order to transfer it to the defendant's shoulders. In any case, the defendant's decision was pertinent, in the sense that it also depended on the plaintiff's desire to accept the position and after we got the impression that the employer took into account the employee's disability and made active, honest and direct efforts in order to locate another suitable position for him, and if necessary, to make the necessary adjustment. There is no legal obligation to obligate the defendant to create a position that is not required, and in our case we have reached the conclusion that all possibilities, including the combination of roles, have been examined in order to make it easier for the plaintiff. But since the latter flatly refused all the offers, there was no reason to expect that the defendant would create a role that was not required.
- In light of the above, we determine that the defendant did not violate the provisions of the Equality Law. The opposite is true. The plaintiff made the necessary adjustments in order to continue to employ the plaintiff in the morning shifts. As a result, the defendant acted in accordance with the provisions of the Equality Law, and therefore we determine that the circumstances of the case necessitate the postponement of the compensation component.
Compensation for unlawful dismissal and mental anguish