War Puts Employees’ Freedom of Speech to the Test

Lawyers say spate of firings for offensive statements may not stand up in court.

Rami Chelouche

Is it legal to fire or suspend employees who have come out strongly against Israel or the army on social networks?

As Operation Protective Edge enters in fourth week, arousing powerful and often controversial feelings, Israel’s courts may be faced with this question. The problem has been magnified by social media, which enable the views of ordinary people to reach many.

Last week an employee of a Tiv Ta’am supermarket was fired for expressing joy over the killing of Israeli soldiers. Hadassah Academic College in Jerusalem revoked a scholarship for an Arab student due to a comment she made on the Internet. An employee of a branch of Bank Hapoalim in Be’er Sheva was fired for writing on his Facebook page, “If only there will be another Holocaust that will exterminate the Jews.”

“On the one hand, it pains me that there are workers who express views aimed at spreading hatred of the army,” said attorney Naomi Landau, an expert on labor law. “On the other hand, there’s no legal recourse for disallowing someone’s political expression, even if what they are saying is infuriating.”

Indeed, most cases of firings won’t stand the legal test,” said attorney Sharon Abraham-Weiss, executive director of the Association for Civil Rights in Israel. “However, if the expressions were published on Facebook, which legally is considered a public arena, there is a measure of incitement — for example, a clear call for violence — so you could file a complaint against the employee with the police. Its role would then be to decide if it’s a criminal matter,” she said.

Even then, employers are not entirely free to act. If an employer fired an Arab who expressed controversial or offensive views on Facebook but did not do the same to a Jewish employee who expressed extreme views at the opposite end of the political spectrum, that could be the basis for a claim of discrimination, said Abraham-Weiss.

Employers are allowed to start proceedings to dismiss an employee if it can be shown that their speech has directly harmed the company’s image or financial standing. Using the company’s name in expressing the worker’s opinion is an example, but it must be the last resort, said the former president of the National Labor Court Steve Adler. Other penalties, such as suspending the employee, are preferable since it might have been a one-time mistake, he added.

In the case of the Hapoalim employee, the bank defended its move saying it had made it clear to employees that during the hostilities they must make special efforts to avoid any kind of hurtful statements. “The employee was fired immediately after a hearing process and the bank condemns his shocking and embarrassing behavior,” it said.

S., an Arab employee of Iscar, a machine-tool maker owned by U.S. investor Warren Buffett, was dismissed after he expressed joy over the deaths of Israeli soldiers on his Facebook page. Iscar defended the decision by saying it was inappropriate for staff to be making politic statements at this time and certainly not defaming the State of Israel.

Last week, the Lod municipality dismissed a psychological counselor, Isra Gara of Jatt, in an expedited process after she expressed joy at the death of soldiers, “Thirteen, may they multiply. Amen .”

The Safed municipality suspended a maintenance worker who wrote on Facebook that “Zionism is the enemy of humanity ... We’re all Palestine.” Safed Mayor Ilan Shochat said statements like that tarnished the city’s good name and image, which entitles it under disciplinary law to dismiss the worker.

There are special cases, too, said attorney Barak Calev. For example, teachers, police officers and attorneys who work for the State Prosecutor’s Office have a special responsibility to act with restraint. Employers in such cases can decide the employee has crossed the line and are no longer fit to carry out their jobs, said Calev.

As to what the labor courts would do if the employee contests the dismissal, Calev said that in general it can be assumed the courts will try not to intervene and prevent the dismissal, but they could very well order significant monetary compensation for the employee.