Labor Appeal (National) 38468-04-25; 42874-04-25 Anonymous vs. Anonymous - part 2

The Ottoman Settlement [Old Version] 1916

5. 12-34-56-78 Chekhov v. State of Israel, P.D.  51 (2) Following the same email to the representative in the United States regarding the termination of a person' s employment, the representative held talks with both a certain person and the manager in an attempt to bring them to turn over a new leaf.  The conversations were initially conducted with each of them separately, and later, on Tuesday, April 6,2021, the representative held a video call (Zoom) with both of them.  At the end of the conversation, it was agreed that the two would try to reconcile their differences for two or three weeks, which would serve as a trial period for a certain woman.
6. On Wednesday, April 7,2021, in the evening (19:20), the manager invited a certain person to his office in order to discuss professional matters. There is no dispute that during the course of more than an hour, the two discussed only professional matters (paragraph 3 of the affidavit of a certain person).  There is also no dispute that as of 20:30 the conversation ceased to be about professional issues and moved to personal matters, but on the other hand, there is an abysmal disagreement between the parties regarding what was said.
7. A person claims that during the conversation, as if out of nowhere and in a way that completely surprised her, the manager began to tell her in detail, including graphic descriptions, about his sexual experiences with men: "The conversation was all about sex... I didn't expect it.  Both in terms of sexual content and because until now we were in a distant and concrete relationship, and certainly not friends, so that fertile ground would be created for this sharing" (paragraph 4 of the affidavit).  The manager, on the other hand, claims that "during this conversation, I reiterated to the plaintiff that it is very important to me that there be full trust between us.  And in order to build this trust and prove to her the great trust I have in me, I chose to share with her a very intimate detail of mine regarding my sexual identity.  I shared with the plaintiff that in the past, a few years ago, I was in a strip club and that there was a naked man in that club and 'Listen, you may be right and I have gay tendencies' (paragraph 37 of his affidavit).  He added that a certain woman showed great interest and curiosity in relation to this exposure, and began to shower countless questions on him, including whether his wife was aware of the matter.  According to him, she shared with him that she herself had sex with a married man and therefore did not judge him, asked to know if he was active or passive, to which he replied embarrassedly that he was not even familiar with these expressions, and more.  According to him, a certain woman insisted and asked to know if she had had sex with a man, to which he replied in the negative, and at this point a certain woman began to share with him intimate experiences that she herself had experienced, and thus the conversation ended (paragraphs 38 and 39 of his affidavit).
8. Over the next few weeks, the two continued to engage in both professional and personal conversations - this will be discussed later in the judgment - but in the disputed circumstances between the parties, the attempt to reconcile matters was unsuccessful, and on April 25,2021, the manager informed a certain woman that he wished to bring about the termination of her employment.
9. Copied from NevoOn April 27,2021, a long conversation took place between the two, which was recorded by a certain woman, during which a certain woman claimed that she had been sexually harassed by the manager, both in the same conversation on April 7,2021 and on various occasions afterwards. The manager repeatedly made it clear to Anonymous in the same conversation that he wanted to finish her work, and Anonymous, for her part, made it clear that she would not be silent about it.
10. On May 3,2021, a certain person sent the manager a text message that included parts of a draft warning letter drafted by a lawyer to whom she had contacted her, detailing her claims of sexual harassment, while stating to him that she was still debating whether to send the letter. According to the draft letter (attached to Anonymous's affidavit and marked A/4), Anonymous claimed, among other things, to the manager that he had already fallen in love with her during the admissions interview; that he contacted the company's representative in the United States regarding the termination of her employment in bad faith and in order to create a situation in which a certain woman becomes a "conditional" employee with the condition that she become his best friend; that he sexually harassed her on many occasions, while communicating at clearly unreasonable hours "which are only acceptable in the relationship of a slave master".  At the end of the draft letter, the director was informed that "the amount of real compensation for the acts described is over ILS 2.5 million", but nevertheless a certain person would be willing "for the purposes of compromise only" to end the dispute by way of an "integrated, quiet and discreet solution" that would include "compensation in the amount of ILS 1,500,000 only.  significantly lower than the amount of real compensation" and the manager's resignation from the company "irreversibly", with a certain person emphasizing that she was willing to allow the manager "a quiet and dignified resignation".  And finally, she demanded that the director make a significant donation to the Sexual Assault Victims Assistance Center.
11. On May 8,2021, a certain woman once again contacted her representative in the United States, and complained to her that the manager had sexually harassed and harassed her. The company appointed Judge (retired) Dina Efrati (hereinafter - the inquirer) to examine the complaints.  The investigator held a number of meetings with the parties, examined the evidence, and in conclusion (see the inquiry report of June 21,2021; P/27 of the statement of claim) examined and found that it was appropriate to accept some of the complaints of a certain woman that the manager had sexually harassed and harassed her.
12. Thus, the inquisitor determined that she was presented with a factual basis for the fact that the manager sexually harassed a certain woman by sharing sexual experiences with her, by asking her sexual questions, and by making statements on his part about love and attraction, in a manner that amounts to environmental sexual harassment within the meaning of sections 3(a)(4) and 3(a)(5) of the Law. The inquirer further determined that a certain woman was "moved" from projects in a manner that amounts to harassment within the meaning of the law.  On the other hand, the inquirer determined that no sufficient factual basis was brought before her to determine that the manager abused or harassed her in employment.
13. In light of the recommendations, on June 28,2021, the manager announced his resignation from the company immediately. Notice of this was given to a certain person the next day, and she continued in her position at the company until it closed during 2022.
14. On February 10,2022, a person filed a statement of claim with the Regional Court amounting to ILS 2,400,000, in which compensation was also claimed for bodily (mental) damage, while she also petitioned as part of her claim for the appointment of a psychiatric expert "for the purpose of estimating the emotional damage caused to the plaintiff as a result of ongoing abuse".
15. The Regional Court held preliminary proceedings, followed by an evidentiary proceeding in which the parties themselves and their witnesses testified, including testimony on behalf of a certain person, Dr. Eitan Schechter, who is an expert in psychiatry with whom a certain person met in one meeting.  After the summary stage, the judgment on which the appeals before us were filed was issued.

The Regional Court's Judgment

16. With regard to the factual dispute between the parties, the Regional Court ruled that it was correct to divide the short period of work in which a certain woman worked into two, the first from the time she was hired on February 14,2021 until the beginning of April 2021 (hereinafter - the first period); and the second, from April 7,2021, until the filing of her complaint of sexual harassment on May 8,2021 (hereinafter: the second period).
17. With regard to the first period, the Regional Court ruled that the communication between the parties took place "almost entirely within working hours, and in clear work matters. The correspondence is indeed characterized by informal friendly language from the beginning ("hush", "shame") mainly on the part of the plaintiff, and in any event, it cannot be found in it even a hint of any reference to the plaintiff's sexuality or to matters of sexuality in general" (p.  9, para.  31 of the judgment).  However, "there is no dispute that shortly after her absorption into the company, the relationship between the plaintiff and the defendant ran aground against the background of repeated conflicts in professional matters in which the plaintiff sought to act according to discretion while ignoring the defendant's position.  There is no dispute that loud arguments even developed between the two using inappropriate language (mutually) and that the plaintiff even found an apology for her conduct" (p.  10, s.  4 of the judgment).  Subsequently, the court ruled that "the defendant had substantive arguments regarding the plaintiff's functioning.  Even if it is possible that another manager would have been impressed differently by the plaintiff's actions and independence, it appears that her conduct was not in line with the defendant's expectation.  In any case, no objective testimony was brought that could indicate conduct that amounted to workplace bullying and/or sexual harassment in the period preceding April 21" (p.  10, para.  19).
18. Subsequently, the court ruled that "the watershed occurred after the defendant contacted the company's management in the United States, in an email dated April 2,2021, in which he announced his dissatisfaction with the plaintiff... He also noted that conversations with the plaintiff in an attempt to reconcile matters were to no avail" (p.  10, para.  25).  Subsequently, the conversation took place with the representative from the United States, after which it was agreed in a Zoom call on April 6,2021, that the two would "try to reconcile things between them for the next two or three weeks, which will serve as a kind of trial period." Thus, according to the Regional Court's ruling, a person's claims that the manager harassed and sexually harassed her were born only after a certain person became aware of the manager's desire to terminate her employment.
19. As for the second period, the court ruled that "on April 7,2021, as part of the attempt to reconcile the differences between them, a personal conversation took place between the parties, which was not related to work matters. In that conversation, the defendant shared with the plaintiff details about his sexual preferences, his relationship with his wife, etc., and he claimed that he did so in order to create a relationship of trust with the plaintiff.  The next day, the plaintiff told the defendant that she felt uncomfortable with the conversation, and according to her, the defendant expressed disappointment with it" (p.  11,9).  Subsequently, the court ruled that the manager had sent a message of apology to a certain person by text message, to which a certain person replied, "Thank you, but you really have nothing to apologize for.  I'm guilty, I couldn't phrase it properly...  It's all good (Yellow Heart) I haven't closed and I still believe that one day we'll get to a place where you really want to have a heart-to-heart conversation with me.  (I'm already there for the avoidance of doubt)" (p.  11, s.  14).
20. The court further states that later that month, the parties made a mutual effort to develop a relationship of trust "or a semblance of a relationship of trust", including text message correspondence between them outside of work hours, including late evenings, which "often spilled over into personal matters that are not related to work, with both parties actively participating in raising personal issues. and by inflamed the conversation while demonstrating a friendly attitude, but without any written indication of the existence of sexual attraction between the parties."
21. With regard to Anonymous's claims that after the conversation on April 7,2021, and in parallel with the text message correspondence, oral statements of a sexual nature were exchanged between the parties, the court ruled that "our decision is similar to that of the investigator, who found that there were statements of this kind. We base our conclusions first and foremost on the transcript of the confrontation conversation that took place between the parties on April 27,2021" (p.  12, s.  11, transcript P/2 of the affidavit of a certain person).  The court rules as follows in connection with the transcript of that conversation (p.  12, s.  15):

"We have not lost sight of the fact that this is a conversation that was recorded by the plaintiff without the defendant's knowledge, and in which the plaintiff is heard laying out her claims at length and continuously, in a manner that makes it difficult to attribute decisive significance to the fact that the defendant did not protest/deny each of the allegations that were leveled at him one after the other without the possibility of responding to each of them separately, and at the same time, during the conversation the plaintiff explicitly mentioned several times the claim that the defendant told her that he was sexually attracted to her.  and this matter was not denied at any stage in the conversation, and therefore we determine that after the conversation of April 7,2021, there were 1-3 incidents in which the defendant expressed himself to the plaintiff in a manner that can be inferred from him that he was sexually attracted to her, even though he did not make any concrete proposal and did not touch her sexually."

22. With regard to the exact content of the conversation of April 7,2021 and the statements that followed, the court ruled that "we find it difficult to fully accept the plaintiff's claim that it was the defendant who initiated the frank and detailed discourse about his exact sexual preferences by entering into graphic descriptions, or that he initiated statements related to the way he felt about the plaintiff, out of a desire to exploit the relationship of authority between the parties for his own pleasure." In this regard, the court noted that during the text message correspondence between the parties that took place on April 19,2021, a person noted that "I already have the recording." The court ruled that this statement, together with the reference in the letter of the lawyer on her behalf to the fact that a certain woman had recordings documenting "statements attributed to the defendant from the conversation on April 7,2021 or from the later conversations", indicate that a certain woman had recordings documenting the conversations or conversations with the manager during which she allegedly sexually harassed her. The court further states as follows (p.  13, para.  22):

"It is not impossible that if the full recording of the conversation had been presented to the court, it would have been possible to get the impression that the plaintiff did not innocently come to record the conversation and was surprised by what the defendant said to her on his own initiative, but that the in-depth conversation regarding the defendant's sexual preferences began, as the defendant claims, after the plaintiff first shared with him about her relationship with a woman (a fact that she did not deny in the transcript of the confrontation of April 27,2021) And also after the plaintiff shared with him the most personal and sensitive information about her (as detailed in paragraph 1.26.3 of the examiner's report), and yes, it is not impossible that it would have turned out, as the defendant claims, that it was the plaintiff who initiated questions about the defendant's personal affairs, and the defendant was dragged into answering them.