Fogel and Yaniv were employed by RAFAEL. They were civil service employees for over fifteen years. At some point RAFAEL attempted to discharge them.
Herein a review of an appeal filed by the State of Israel at the National Labor Court. RAFAEL appealed from the decisions of Hon. Judge Doron Meiblum, Regional Labor Court in Haifa, declaring that the wrongful dismissal actions, i.e. firing civil service employees, Hanoch Fogel and Alex Yaniv were void.
The Case of Hanoch Fogel
In 1985 Fogel was on a Sabbatical leave, quite far away from the Israel. Then RAFAEL initiated his dismissal reasoning that he was unfit for his job. He however was unaware to this proceeding. From the fact that Fogel returned and continued to work with RAFAEL it is reasonable to believe that they revoked his first time dismissal.
The second attempt to dismiss Fogel was made in 1991, when RAFAEL made a reduction of stuff. In March 1992 there was the third unsuccessful attempt to fire Fogel. He and the Union objected RAFAEL's proposal that he would resign. Then he was harshly advised that there were negative written opinions about him already filed within his personal file. However Hanoch had not been given an opportunity to review his file as it should be done according to the regulations.
The forth attempt to dismiss Fogel was made in 1993. This appeal was filed at the National Labor Court, after Hanoch Fogel prevailed his lawsuit at the Regional Labor Court.
The Case of Alex Yaniv
Yaniv was not dismissed because of his said "bad record" although there were minor negative opinions about his accomplishments, the first of which was filed in 1980-81.
Cause of Action
On September 22, 1993, Fogel and Yaniv were informed about their dismissal from civil service at RAFAEL. On the next day union representatives asked to review their personal files and found inter alia that in Fogel's file there were three missing documents they had known about from a previous frivolous attempt to dismiss him.
On September 24, 1993, Fogel made a complaint with the police against RAFAEL, because of illegal removal of documents from his personal file (which was an official file at the civil service). Consequently, on September 26, 1993, RAFAEL informed the Union that two documents were found except one. Consequently the Union demanded on October 4, 1993, that RAFAEL should correct its wrongdoing. RAFAEL replied on October 12, 1993, doing a little of its misconduct, claiming it was a rare and unique mistake. On October 1993, the Union refused to meet the management on next day, alleging that the management had not properly acted to correct its misconduct with respect to tampered personal files of its employees. On the next day RAFAEL requested Civil Service Commissioner to dismiss Fogel, Yaniv and another employee. The approval for these dismissals was promptly given on October 26, 1993, by the Civil Service Commissioner. The dismissed employees were informed on November 7, 1993, that their dismissal was effective December 12, 1993. On November 11,1993, Fogel, Yaniv and a third employee filed a lawsuit (94/12-566) against RAFAEL, contending their improper dismissal, also to withhold dismissal proceedings until a final decision would be ruled by the court.
The first preliminary hearing was held on November 22, 1993. Despite an agreement made between RAFAEL's management and the Union, it appeared that there were still missing documents in the personal files. RAFAEL despite court's intervention failed to provide the missing documents and protocols of meeting with the discharged employees and the Union. The only evidence presented before the court was Fogel's and Yaniv's testimonies, as follows:
"I have never gotten any explanation. I had asked for. He showed me (hand motion of ...). The letters had been dictated. I hold here two identical letters signed by different individuals, both degrading. There was an interview before my Sabbatical leave. It was missing in the personal file. The honor award of excellence was missing too. They were advised by me about it. He said to me, 'look at the mirror, you hurt your soul, the issue would be spread in public'. Deliberately he ignored any of my claims that my personal file was tampered. He was calm and I was threatened. I talked about missing document that had been taken out of the personal file and erased from outgoing log of mail. He replied 'don't be caught on tiny things.' On Sunday I was informed about my second time dismissal. There was no reason. . ."
Yaniv's testimony (regional labor court protocol page 26):
"Surprisingly, I was invited to promptly meet RAFAEL's manager on November 25, because he was about to leave abroad on November 28 and this time was allotted to me. No one let me know the reasons for my unfitness, I did not know about what I should defend myself. At the meeting, the manager said to me he did not wish to open any long range issue, but only recent events. He said no word about my unfitness. He asked my response to the point. I told him about my Sabbatical leave. He responded there were technological changes and therefore reduction of Quality Assurance engineers. I am a Logistics man, not Quality Assurance . . . I knew there were units interested to employ me . . . the manager said there were reductions, he evaded any possibility of my employment, he never said I was unfit."
On December 12, 1993, the Regional Labor Court ordered Fogel and Yaniv to provide RAFAEL all the documents they claimed should have been in their personal files. RAFAEL's manager should then respond within 24 hours, whether he had seen these documents, at the time he had decided about their dismissals.
On December 16, 1993, the attorney representing Fogel and Yaniv informed the court that RAFAEL's manager had not seen timely those documents, but that he would not revoke their dismissal now, while another employee who was not a party to the Regional Court proceeding would be returned to work.
RAFAEL presented a testimony of one witness and immediately after this the parties sent their concluding brief. RAFAEL had never moved the lower court to present additional testimony.
At the National labor court, however, RAFAEL appealed that the proceeding at the lower court was too swift, lasting only 30 days from the day the lawsuit was filed to the final verdict. Therefore according to State Attorney there was no proper reply on behalf of RAFAEL; the issues of holding the dismissal and the main cause of action were unified. RAFAEL pretended it didn't know about it. The lower court according to the State Attorney refused to hear additional testimonies on behalf of RAFAEL.
Fogel and Yaniv responded that the lower court proceedings were fair and properly conducted, as it should be done in any case of wrongful dismissal. The State Attorney (appealing party) had never objected timely. The wrongful dismissal had neither been reasoned nor been corrected as it should have been, following the finding of missing documents.
The National Labor Court reviewed the internal regulations of the Civil Service, and in particular, sections 82.231, 82.232, 82.233, 82.234, 82.237, 82.238. Based on precedent cases, the Labor Court decided that in certain cases it might revoke a wrongful dismissal of a Civil Servant. The National Court comprehensively explained its verdict. In this case the Court decided to revoke Fogel's and Yaniv's dismissals.
The court also commented
Accordingly, RAFAEL's appeal was denied. However, the court commented that if RAFAEL's management wished to discharge Fogel and Yaniv they might do so later under the provisions of the law and the administrative proceedings, while keeping the morals of natural justice. Conclusively, the State Attorney was ordered to pay expensess, NIS 2,500 plus VAT, to Fogel and Yaniv.
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