The right to a hearing is a fundamental right of an employee, which requires providing a fair and appropriate opportunity to present their arguments before the employer prior to dismissal and/or changes in employment terms. This right originates from administrative law and is not actually enshrined in Israeli labor laws but is a creation of labor court rulings.
The purpose of the hearing is to present the employee with the allegations against them and the reasons for their dismissal and/or change in employment terms, and to allow them to refute these claims and try to persuade the decision-maker not to terminate their employment and/or harm their position.
Even though the hearing process may sometimes seem like a “foregone conclusion,” it is a highly significant procedure. It gives both parties the first opportunity to argue about the dismissal and/or changes in employment terms, and to document the arguments within a formal protocol. The hearing might lead to the employer being convinced not to change the employee’s status, resulting in the cancellation of the proceedings against the employee and their return to regular activity. However, besides this uncommon outcome, there are other alternatives, such as reducing the scope of employment, issuing a warning, setting a probation period, changing the role, etc.
Additionally, it is a golden opportunity to reach a settlement without resorting to legal proceedings with the assistance of a presenting lawyer and to end the employment under favorable conditions – enhanced compensation and adaptation benefits – which in some cases may amount to significant compensation, thus avoiding a legal confrontation.
It is important to remember that during the procedure, the representing lawyer records the employee’s arguments and legal flaws within the protocol, “setting the factual reality” before potentially unavoidable legal proceedings, thereby significantly increasing the employee’s chances of winning in court.
Ten Rules for Conducting a Proper Hearing:
Detailed Written Summons:
The invitation to the hearing must be in writing and detail all the reasons and grounds for the hearing, explaining the intention to dismiss or change employment terms, to allow the employee to prepare and respond properly.
Right to Review:
The summons must include all the materials the employer relies on, allowing the employee to review all relevant documents to prepare their response, even if the documents do not directly pertain to the reasons for the hearing.
Hearing Date:
The employee should be summoned within a reasonable time, typically at least three days between the summons and the hearing. If the employee needs more time to hire a lawyer or review additional materials, it is advisable to extend the period accordingly.
Written Hearing:
The hearing can be conducted in writing or face-to-face, depending on the circumstances, provided the employee’s arguments are heard with an open heart and mind. Recently, due to the COVID-19 crisis, we have seen hearings conducted via visual conferencing apps like Zoom.
The employee can waive the right to a hearing in writing, in which case the decision will be based on the summons documents and materials submitted by the employee.
Representation:
The employee has the right to be represented at the hearing by a lawyer or any other representative. In organized workplaces, the employee can request a union representative to participate in the hearing.
Documentation:
The hearing process must be documented. There are various ways to document the hearing, but the documentation should reflect the main points made by both parties. It can be documented in writing by the hearing conductor, recorded and transcribed, or summarized in a report. It is recommended to record the hearing to prevent claims that the documentation does not reflect the hearing accurately. The employer must provide the documentation to the employee shortly after the hearing.
Hearing Conductor:
The hearing should be conducted by someone authorized to decide on the matter or who has been delegated this authority.
Listening to the Employee:
The employer must listen to the employee with a genuine willingness to consider their arguments sincerely and not superficially or as a formality, especially if the decision to dismiss has already been made.
Hearing Decision:
The hearing decision should not be made during the hearing in the employee’s presence but within a reasonable time afterward, considering all data and arguments raised by the employee and examining less severe alternatives. The decision should take into account additional factors such as the employee’s age, tenure, personal and health conditions, etc. The decision should be communicated personally or, if not possible, in a respectful manner that does not violate the employee’s privacy.
Duty to Explain:
The hearing decision must be detailed and address each claim raised in the summons against the employee’s response, explaining why they do not change the employer’s decision.
