The Pitfalls of Zavla, my position in the case in question

This is an excerpt from my final written communication with the to'ein concerning this case. Subsequently, the other two dayanim issued a psak din that they sent directly to the parties to the Din Torah. I have not seen a copy of it.


Dear Reb ..., shlita,

...It is simply one of "rabbinic malpractice," as the intention of the other "dayanim" to render a binding psak on the basis of a rationale that (to paraphrase): "Well, we don't know the halacha and we don't have to determine it ourselves (after all we can't find precedent!), the claimant has to prove it to us. Since he hasn't proved it, he loses." This is clearly not a din, nor karov l'din, but a miscarriage of justice. I cannot be a party to any further proceedings. I hope you will find a Beis Din that will redress this avlah. I am cc'ing the other individuals who sat in this "Beis Din."

My current positions on the psakim that should be rendered in this case are as follows, taking into account that no final disposition is implied:

... [In two other matters under consideration I wrote that in my view the halacha was (more or less) in accordance with the position taken by the nit'anim.]

3. Re severance pay: Rabbi ... is entitled to severance pay in full.

Explanation:

See Piskei Din Yerushalayim vol. 7 pp. 38-40 (it is in the Bar Ilan database, so I can send you a copy if necessary), that once the minhag of severance is established (as it is for mechanchim in ..., as we clarified with both the ... and Rabbi ...), its geder is that of a retirement savings account - i.e., the chodesh l'shanah eina mishtalemes elah l'ba'sof - it is only payable at termination, in one lump sum. This was reaffirmed in PDY vol. 9 p. 248. In the latter psak din
a cross-reference notes that there are certain conditions under which severance is forfeited. (See ibid., p. 293, concerning a case in which some Rabbeim in a yeshiva opened a rival yeshiva, in which case their severance is forfeited; see also ibid. vol. 8 p. 183 that when an employee quits a position of his own volition he thereby forfeits his severance).

Thus, severance is the equivalent of a thirteenth month's salary per year - with two caveats:

1. It is only paid upon termination of employment.
2. It is only paid in the absence of one of the conditions that renders it forfeit.

Thus, as is the case with back pay, the severance is a chov on the employer. Hence, the fact that the employer has chosen to shut down the function of its corporate entity that employed an employee is in no way an exemption from severance, just as it is no way an exemption from back pay. The employer must use its assets to cover this debt as it would any other debt.

The other "dayanim" claim that teshuvos issued in Eretz Yisroel are not binding, because the dina d'malchusathere is different. Of course, these psakim have nothing to do with dina d'malchusa. These same "dayanim" want to have it both ways as, claiming that Yeshivas ... is closed, despite the fact that according to dina d'malchusa the corporate entity is alive and functioning, with operations and employees.

Note 1:

In a telephone conversation, Rabbi ... [an outside authority] stressed to me that he never meant to say that the minhag was to not pay severance when a yeshiva is dissolved (which, in my opinion, has not occurred in our case in any event - as Yeshivas ... still functions, albeit as a Shul and Beis Medrash, and has at least one employee on its payroll). Rather, he said, he does not know what is customary in such circumstances.

He also stressed to me that the minhag of severance as established in regard to mechanchim emerged as a result of the hardship that mechanchim endure throughout their years of chinuch - i.e., since they are underpaid and overworked, the workplace has granted them this additional compensation.

Thus, obligation remains a lien outstanding on their remaining assets. [This halachic perspective on the parameters of severance was explained to me by one of the foremost experts in Halacha and Business Law in the United States, specifically in regard to the minhag of severance as practiced here.]

Note 2:

See Acting More Generously than the Law Requires: The Issue of Employee Layoffs in halakhah by Harry J. Van Buren III in Journal of Business Ethics 19, pp. 335-343 (1999) - upon request I can provide the essay in pdf or hard copy. While he is certainly not a posek, Mr. Van Buren demonstrates from several legitimate halachic sources that an industrial plant that has closed must pay severance to its laid-off employees.

Note 3:

I am indebted to two friends and colleagues, one in Monsey, NY and the other in Elizabeth, NJ, with whom I discussed these issues and who advised me and assisted me, both in sevara and in practice.