Sick Leave After A Hearing Procedure

Many employers are forced to face the “hearing illness” – that mysterious illness that visits employees immediately after they are given a letter summoning them to a termination hearing.
The Tel Aviv Regional Labor Court recently handed down a judgment in which it considered the conduct of an employee after she was summoned to a termination hearing. The court held that the employee, who took advantage of her sick leave and used it as vacation days, should be denied severance pay and early notice payments, and must even refund money to the employer for the sick days paid to her (a remedy that was not initially sought by the employer).

The interaction of termination hearing rules and the sick leave statute (which prohibits the termination of an ill employee) creates a loophole that enables many employees to take an absence with their sick leave and thus delay the hearing or the rendering of a decision after it.

In the case above, after the employee was summoned to a hearing, she was absent for two months due to illness and produced several sick notes from different physicians. In conjunction, the employee posted to her Facebook account photographs from vacations and trips, as well as a photograph in which she appeared bungee jumping.

The Labor Court ruled in this context that the “intolerable easiness with which sick notes are issued is a wrongful phenomenon,” and that the cost of such ease is shouldered ultimately by employers. The employee’s conduct, after being warned at her hearing not to use her sick leave days as vacation days, was heavily criticized in the judgment.

The judgment reflects the criticism expressed by many employers of the potential exploitation of their duty (and right) to hold a hearing, and in this sense is an anomaly in the jurisprudential landscape. At the same time, one must remember that the facts underlying this judgment are unusual and thus it cannot be analogized to conclude that in every case of doubt as to the veracity of sick notes it is possible to avoid paying the employee for sick days.

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