Lawful Employment Termination in a Changing Labor Market

The current changes in the Israeli economy sometimes entail a need for employers to downsize their workforces. These proceedings can be complex and require advance preparation, as well as proper, accurate, and in-depth process management.

Employers must be diligent about upholding several key principles in employment termination proceedings, even under dire business circumstances.

Q&As about Employment Termination Proceedings

Is a pre-dismissal hearing compulsory during layoffs?

Yes. Employers must hold individual hearings for each of the relevant employees prior to layoffs, reduction in force, redundancies, wage reductions, or any other adverse change in employment terms. In addition, employers must deliver a letter to the employee summoning him or her to a hearing and specifying the circumstances of why the employer is considering terminating the employee’s employment. Employers must give the employee sufficient advance time to prepare for the hearing and, during the hearing, must allow the employee to raise any argument in his or her defense. The employer must consider arguments and send a written decision to the employee after adequate post-hearing deliberation.

Is there a minimum interval that employers must give to employees between the date of receipt of the summons to the hearing and the date of the actual hearing?

Employers must provide employees with a reasonable time frame from summons delivery to hearing date. The term “reasonable time frame” has not yet been defined in case law, and may vary from case to case depending upon the circumstances. For example, the Jerusalem Regional Labor Court recently handed down an unusual decision during an interim proceeding, ruling that two business days before the hearing is not a reasonable time frame. However, that case was unusual. Delivering a hearing summons two business days prior is usually considered reasonable. Of course, if the circumstances are unusual, employers should give employees a longer time frame to prepare for the hearing.

Is it compulsory to apply for a dismissal permit pursuant to the Employment of Women Law if the dismissal is of a pregnant woman?

If the employee has been working in the workplace for at least six months – yes.

In most instances, hearings are proceedings conducted in a regular manner. However, there are instances requiring vigilance and special attention, because the law prescribes significant restrictions on dismissals (also in relation to downsizing or layoffs due to reorganization). Examples of such instances include pregnancy, fertility treatments, adoption, and surrogacy processes, as well as military reserve duty exceeding two consecutive days. In any of these instances, or if information about such instances comes to the employer’s attention before, during, or even after the hearing, we recommend that you consult with us.

Are employees entitled to the accompaniment of a lawyer or representative on their behalf during the hearing?

Yes. Employees have the right to request that their employer allow a lawyer or representative to be present during the hearing. In such instance, we recommend that the employer also have its lawyer present during the hearing.

May employees waive their right to a hearing?

Yes. Employees may waive their right to a hearing. Under these circumstances, the employer should ask the employees to submit written notice that they are not interested in a hearing. Failure to attend the hearing may also be considered a waiver of a hearing. Therefore, we recommend that employers clarify this fact to the employee in advance.

May an employer issue its dismissal decision to an employee immediately upon concluding the hearing?

No. The employer should notify the employees of the decision only after a sufficient period of time has elapsed since the hearing, thereby enabling the employer to seriously consider the employee’s arguments. It is not advisable to issue a decision to an employee during or immediately after the hearing. This may suggest the decision regarding the employee’s dismissal was pre-determined, in violation of the principles outlined in labor court rulings.

An employee received a summons to a hearing and advised that he is ill. Can the employer reach a decision to dismiss him?

No. In this instance, the employer may not hold a hearing and the employee may not be dismissed, provided the employee’s absence was at the expense of accumulated statutory sick days.

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Our firm’s Employment Department is at your service to answer questions, advise, and assist during employee downsizing and dismissal proceedings.

Adv. Netta Bromberg heads Barnea Jaffa Lande’s Employment Department.

Adv. Jacki Silbermann is an associate in the Employment Department.