Finally, psychiatrist Dr. Eitan Schechter testified that a certain woman suffers from anxiety depression and stress disorder (PTSD) due to sexual abuse and abuse in the workplace, and that he gave her a prescription for a sedative called Cipralex. However, according to his testimony, his opinion is based on a one-time visit by a certain woman to him that took place on December 22,2022, a year and a half after the manager left his job in June 2021, and almost ten months after she filed her statement of claim in February 2022. Dr. Schechter added that he was not informed and did not know whether a certain woman sought another or additional treatment after that one-time visit to him, nor did he know whether she even used the prescription he gave her in order to purchase and use the sedative. From this it is clear that this testimony does not support Anonymous's claim that she suffered harassment in real time.
- Before we conclude the discussion of the factual determinations, let us clarify that we have not lost sight of the exchange of text messages between the parties dated April 19,2021, which according to a certain person, included an admission by the manager that he had sexually harassed her (for example: "I put you in a situation where you might conclude that your work depends on how 'nice' you will be to me", "It really disappoints me that I fell like this", and "Yehuda Meshi Zahav and I will share a cell and "I was too open"), but even though these words do indeed tip the evidentiary scales in favor of a certain woman, we have not found that they skew them to the point of reaching a conclusion regarding the acceptance of a certain woman's claim. This is for all the reasons that we have explained so far, and also because it is clear that at this stage a certain person demanded that the manager apologize, accused him of being too open, and it seems that he did find himself in distress and apologized to her.
- In view of all of the above, the appeal should be accepted with regard to the determination that the manager sexually harassed a certain woman, so we determine that a certain woman has not been able to prove this.
- However, while the Director in his appeal asked us to determine that a certain woman acted in bad faith and abused the law, in order to create out of thin air a lever to blackmail him and thwart her dismissal, we do not believe that the body of evidence justifies such a far-reaching conclusion.
Has harassment been proven on the basis of sexual harassment?
- Even though we have determined that it has not been proven that the manager sexually harassed a certain person, this does not negate in principle the acceptance of the claim of a certain woman that the manager harassed her because she complained that he harassed her.
- However, in the absence of a dispute that the manager acted to dismiss a certain woman against the background of professional disagreements and dissatisfaction with her performance, even before the events in relation to which a certain person claimed sexual harassment, the regional court's determination that the manager harassed her against the background of her complaint against him should also be rejected. This is in view of the fact that the findings of the Regional Court regarding harassment were based mainly on its determination that "the plaintiff's claim that if she had acted to realize the defendant's sexual attraction to her, he would not have acted to terminate her employment as he did" (p. 16, para. 9 of the judgment), and that this determination is denied, since the possibility of harassment on the basis of an allegation is also ruled out .which was denied) to a statement on his part regarding attraction to her. Moreover, the fact that the "bottom line" of the events discussed in this judgment was that the manager resigned and left the company he founded, while a certain woman remained in her position until the company was closed down the following year, supports the conclusion that a certain woman did not suffer harassment in the circumstances of her complaint. We will add that we have not lost sight of Anonymous's claims that during the period of several weeks in which the inquiry into her claims was conducted, the manager acted to reduce her role, for example by working to recruit an employee without sharing the affidavit with Anonymous (Exhibit 20 of the affidavit) and by not writing to Anonymous on an email that dealt with planning the company's trip (Exhibit 21). However, in the circumstances of the case, in which the director was required at that time and until the conclusion of the investigation to minimize his contacts with a certain woman, we do not believe that these matters justify a determination of harassment.
The panel that heard the witnesses and gave the verdict
- There is no basis for a person's claims that there was a flaw in the judgment in that it was given in a panel that included only one public representative. In the case before us, at the beginning of the first evidentiary hearing, a decision was made according to which with the consent of the parties, and since one of the representatives of the public was forced to leave the hearing (this was the second evidentiary hearing on the same day of the same panel), the hearing will take place in the panel without his participation (p. 1, para. 29 of the transcript). A similar decision was given at the beginning of the second evidentiary hearing (p. 1, s. 13). The court ordered this by virtue of the authority granted to it insection 22(a) of the Labor Court Law, 5729-1969. As aforesaid, a certain woman agreed to the hearing before this missing panel, and in any event, even later in the litigation, she did not object to these decisions shortly after they were rendered, or at any other stage during the litigation in the Regional Court, including not in her summaries. As is well known, the law allows for a hearing to be held in a panel that lacks one or even both public representatives, and to render the judgment in that missing panel, provided that this is done in a reasoned decision (High Court of Justice 3641/13 Machluf Beer-Sheva Regional Court (May 30,2013)). When a certain woman agreed to a hearing before a missing panel, and did not object to the decisions made in this matter during the litigation in the trial court, and raised an objection in this matter only at the appeal stage, she should be considered as having agreed to the panel that was determined in those decisions, including the judgment in that panel, so that she is prevented from arguing otherwise, and her claim in this matter should be rejected (Labor Appeal (National)(8784-07-16 Agudat Yisrael - Shuker Kindergarten Network (5.12.18)).
- As for a particular claim, regarding the opinion of the head of the panel regarding improper intervention in her cross-examination and improper treatment on her part - these are claims that were not raised by her in real time, by way of filing an operative request of one kind or another during or after the investigation, including at the summary stage in the regional court, in a manner that would have allowed the panel to respond to the allegations regarding the extent and manner of its involvement in the cross-examination. Therefore, since the motions were not raised even in the summaries of a particular woman that were submitted to the Regional Court, she is prevented from raising them for the first time at the appeal stage, and therefore there is no reason to address them.
Lack of substantive authority to hear an employee's claim against another employee on the grounds of abuse
- The Regional Court was correct in its ruling that the Labor Court has no jurisdiction to hear a claim filed by an employee against another employee who he claims abused him (Labor Appeal (National) 29915-11-22 Hakmon - Togo - Clothing and Management (October 12,2023, at paragraph 32; Request for Leave to Appeal (National) 1083-03-21 Eden Hotel Nahariya Ltd. - Biyomi (24.3.2021; and see the references there)). Therefore, the appeal in this matter was dismissed, without addressing the claims of a particular person (some of which were supported by the same witnesses we mentioned who testified in her favor) regarding abusive behavior towards her on the part of the Director, which the Director categorically denied, as well as the Court's rulings that were determined in this regard "beyond necessity" (p. 18,29 of the judgment).
- We would like to clarify, however, that unlike bullying, harassment by an employee against another employee, as defined insection 3(b) of the Prevention of Sexual Harassment Law ("Harassment is an injury of any kind that stems from sexual harassment, or a complaint or lawsuit filed about sexual harassment"), is within the jurisdiction of this court, and accordingly we discussed above in paragraphs 76 and 77 in the claims of a certain person that the manager harassed her (for the distinction between harassment at work on the basis of sexual harassment and workplace bullying, see The Anonymous case 2022, in paragraphs 67 to 72 of President Varda Wirth-Livneh's opinion).
The Matter of Appointing a Medical Expert
- In her appeal, a certain woman claimed that the court should have appointed a medical expert to examine the emotional damages caused to her, according to her, as a result of the act of sexual harassment on the part of the manager. Now that we have reached the conclusion that sexual harassment and harassment have not been proven, there is no need for us to decide the issue of the very right to receive compensation without proof of damage under section 6(b) of the Law, in addition to the tort compensation, for which the appointment of an expert was requested, according to section 6(a) of the Law.
- More than necessary, we note that as a rule, proving a "medical matter" requires attaching an expert opinion to the statement of claim (section 87(a) of the Civil Procedure Regulations, 5779-2018; For the application of the regulation in the Labor Courts by virtue of Section 33 of the Labor Court Law, 5729-1969, see: Application for Leave to Appeal (National) 32162-12-23 Anonymous - Clal Insurance Company Ltd. (December 28,2023)), unless the Tribunal exempts the litigant from the duty to join (Regulation 87(d) of the aforementioned Regulations; Labor Appeal (National) 1342-01-24 Ben Shaton - Turgeman (10.10.24)). This is also true for claims on the grounds of sexual harassment in which he is claimed to be entitled to compensation under the tort track insection 6(a) of the Law, subject to the possibility of splitting the hearing into the liability stage and the damage stage outlined in Directive 2-07/13 issued by the President of the National Court in 2013. In the circumstances of the case, and contrary to what was claimed by a certain woman, it was not determined that a medical expert would be appointed, but rather that an appointment would be made after the evidence "to the extent necessary". In view of the result, and as the Regional Court clarified after the judgment was rendered, no need was found to be necessary.
Conclusion
- The appeal is accepted, so that the manager's obligation to pay a certain woman compensation in the amount of ILS 50,000 for sexual harassment, and an additional compensation of ILS 50,000 for harassment is canceled. The counter-appeal is dismissed.
However, in the circumstances of the case, and in order to reduce as much as possible the fear of a "chilling effect" on sexual harassment claims, we do not make an order for costs in connection with the acceptance of the appeal and the dismissal of the counter-appeal.