The parties' arguments
- According to the plaintiff, there were flaws in the hearing process. Since this is an employee with a disability, the defendant should have taken extra care in dismissing him, and insisted on offering him a proper position that corresponds to his limitations.
- According to the defendant, the plaintiff was summoned to the first hearing and the evidence is that at the end of the day he received what he wanted and was assigned to morning shifts. At the second hearing, at least two alternatives were examined, and the plaintiff refused to adopt one of them. The plaintiff sought to create a position that was not compatible with the defendant's work environment, and in any case the job was an effort that the plaintiff could not endure due to his limitations and due to the recommendations of the occupational doctor.
The Normative Framework
- The purpose of the duty to hear is to enable the employee to voice his arguments before making a fateful decision regarding his continued employment (Labor Appeal (National) 269/06 Larisa Lomelsky - Bat Yam Municipality [Nevo] (given on May 15, 2007). With regard to the obligation to hear, it was held that:
"... The question of whether the obligation to hear is fulfilled in any case derives from its own circumstances. It is not like a case in which the factual or other basis for dismissal is extensive in a simple case. Moreover, not every 'defect' in the hearing necessarily justifies the award of compensation – each case must be examined in its own circumstances" (Labor Appeal 554/09 Sabra Iron Supply and Marketing of Metal in a Tax Appeal - Shamir, published in Nevo, January 13, 2011).
- The employer must bring to the employee's attention in advance the possibility being considered, i.e., his dismissal, and provide the reasons for which the possibility is being considered, all in order to be able to raise his arguments in this context, arguments that the employer must consider willingly (Labor Appeal (National) 23402-09-15 Uriel Bard-Cansto in a Tax Appeal [published in Nevo] (given on February 28, 2017). It was further held that the concealment of the cause of dismissal from the employee constitutes in itself a lack of good faith that impairs the dismissal process (National Labor Court Hearing 41/3-39 Eliyahu Hagag v. Eitam Regional Administration Cooperative Society Ltd., [published in Nevo] PDA 13 74 (1981)).
- With regard to the considerations that must be taken into account when awarding relief for unlawful damages, the National Court ruled that:
"In the case of hail, we have enumerated – without pretending to exhaust – a number of considerations... which include: the severity of the defect and the severity of the employer's omissions, whether the duty to hear was fully or partially violated...; the nature of the proceeding – to the extent that it exists – and whether it was preserved within the framework of the discourse and achieved the employee's dignity as a person, or whether accusations were just made; Whether the dismissal was for a practical reason or not, ...; the duration of the employee's employment period; The age of the employee. ; Was the employee's behavior also faulty... and more" (Labor Appeal 10940-10-15 Menora Mivtachim Insurance in Tax Appeal v. Yonatan Ron, published in Nevo, given on September 6, 2018).