In the late 1970s, I presided as a judge over a hearing in the Jerusalem District Labor Court, which began as a common dispute but had a dramatic conclusion.
When we reached the last case of the afternoon docket, the courtroom had emptied out and only the parties involved in that dispute were present: the worker, his employer and their lawyers. The worker was a young man, 22 years old; we’ll call him David. The employer, an elderly man whose name was Sadya, looked unhappy about being in court. From the papers filed, we knew that Sadya owned and operated a basta (stall) in Mahane Yehuda, the famous Jerusalem open market, and that the young man had worked for him in the basta. Both were Jewish according to their names and represented by lawyers. The lawyers informed the court that the only witnesses would be David and Sadya.
David testified first and said: “I worked for Sadya at the basta for eight years, and during an intense argument, he said, ‘You’re fired; get out of here, I don’t want to see you any more!’”
David continued in a low voice with little emotion: “He fired me. My final salary is written in the papers I filed and, therefore, I am entitled to severance pay of eight times my final salary. I have nothing more to say.”
I asked Sadya’s attorney if he wanted to question David, figuring that there must be more to the story than David mentioned. However, his attorney replied that he did not want to cross-examine David.
At this stage of the hearing the case seemed simple, since the Severance Pay Law requires an employer to pay a dismissed worker one month’s salary for every year worked.
From the papers filed it was not clear why Sadya had not paid David the severance pay. While there are numerous surprises even during simple trials, it was late in the day. The public representatives and I were getting tired and we hoped that Sadya would just agree to pay and let us conclude the day’s hearings.
When Sadya began his testimony the hope was for a short, simple story, but employment cases involve people and human relationships and these often involve surprises, which was about to unfold in the following dramatic testimony and scene.
Sadya clearly, with poise and self-confidence but with the language and expressions of the owner of a basta in the shuk, began his testimony. With great pride, he said: “Everyone in Mahane Yehuda knows Sadya. I have many bastas in the shuk, not just the basta David worked in. I am one of the organizers of the shuk’s merchants. I sell merchandise in my bastas and I am also a wholesale dealer who brings fruits and vegetables to the shuk and sells them to other bastas.”
This seemed a good time to ask Sadya why he had not paid David severance pay, if he was indeed a successful basta owner and financially well off. Sadya answered in an indignant manner: “I have a lot of money, judge; money is not a problem, but that boy won’t get a lira (shekel) from me.”
“Sadya,” I said, “please relate to David’s testimony; the Severance Pay Law says that if a worker is dismissed, he is entitled to severance pay. Why shouldn’t David receive what the law grants to him?”
“What the boy said is true,” Sadya replied. “I fired him, but judge, that boy is not going to get anything from me because he spat in the plate from which he ate.”
This colorful expression in Hebrew, which I vividly remember Sadya using, accuses a person of being ungrateful to someone who helped him very much. I then suggested to Sadya that he remember all the years David had worked for him and not the single argument which brought about the dismissal.
Sadya continued his story: “Your honors, let me tell you the story of this boy and how I helped him. I am known in the shuk as the patron of young boys who are thrown out on the street by their parents and have nowhere to go. I help them so that they won’t descend into crime and drugs. David was thrown on the street by his mother at the age of 14.
“I, Sadya, took him in, gave him a job and a place to live and saved him from a life of crime and misery. When the boy began using drugs I brought a social worker and together we put him back to the right path. I made sure David went into the army and while he was a soldier had a job with me in his spare time and a place to live.
“When David married, I, Sadya, found him an apartment to rent and bought him furniture. And your honors, look at the thanks I get. I do all this for him and he curses me when we have an argument! So I fired him and he doesn’t deserve any money after the way he acted and everything I did for him.”
Sadya’s testimony came from the heart and proved that only when the court hears both sides can we understand the real problem. David sat quietly during Sadya’s testimony. When I looked at him, it was clear he did not deny that Sadya was telling the truth.
Even though I was moved by Sadya’s story, I reminded him that every dispute has a human and emotional side but also a legal side. The legal side of this dispute is that the Severance Pay Law clearly requires employers to pay severance pay if they dismiss a worker. Sadya replied he does not have to follow the law in this situation because it is not fair.
I continued with what I thought would be a more convincing argument for Sadya by reminding him that as a person so respected in the shuk, he would want his fellow merchants to regard him as someone who upholds the law. He replied that the other merchants who heard the story were shocked by David’s behavior and thought he shouldn’t pay him anything.
While Sadya was a strong-willed person and convinced he was right, I did not give up trying to settle the case by agreement, instead of handing down a judgment. I told Sadya that according to what he and David said, he employed David from the time he was 14, which is a violation of the criminal labor law prohibiting employment of a minor. This argument did not move Sadya at all. He replied that saving youths thrown out on the street is more important than the law prohibiting employing them and besides, he had already served a jail sentence for a dispute with the Income Tax Authority. In short, he reiterated that he was not going to obey the Severance Pay Law because he didn’t consider it fair to pay David anything.
The courtroom was quiet. The lawyers had no further witnesses. It would have been easy to give a judgment on the spot requiring Sadya to give David severance pay, but we were torn between the letter of the law and Sadya’s commendable behavior helping David and other youths like him.
The two lay judges on the panel and I felt that this was a case in which the court should make every attempt possible to help the parties settle their dispute by agreement. It was difficult to hand down a judgment which would relate to Sadya’s helping the boy, since the Severance Pay Law was clear in declaring a right to receive severance pay and left little room for compromise. We asked ourselves, would it be just in these circumstances to require Sadya to pay David the entire amount?
Dispute settlement is difficult in situations where the law requires a payment but under the circumstances such payment would be unfair. How could I think of a way to convince or encourage Sadya and David to settle their dispute in a manner which was both legal and fair?
I was at that time one of Israel’s youngest judges, perhaps the youngest, at just 36 years old. As an American immigrant, Israeli culture was new to me and while I often enjoyed shopping in Mahane Yehuda, the language and culture of the people working there was foreign to me.
I could have stalled for more time to think of a method to settle the dispute by asking the lawyers to summarize their positions, but that would have made both parties more antagonistic.
Things were looking grim until the employer lay judge passed me a little note on which was written, “Moses and the Tablets,” and after quick thinking, I understood what he was suggesting.
I turned to Sadya and said: “Sadya, before we finish the hearing, I have a question for you – do you read the Bible?” I knew he would answer in the affirmative and this was a way of involving him in the thought process.
“Of course,” said Sadya proudly, his face lighting up for the first time during the hearing. I continued with another question: “Then you read about Moses, our great leader, who went up to Mount Sinai to get the Ten Commandments?”
Sadya became more excited and replied, “Of course.” Then I said: “Moses had the Ten Commandments in his hands when he came down from Mount Sinai, saw the People of Israel singing with the Golden Calf and dropped the tablets! You remember?”
“Of course,” said Sadya, enjoying every word of the biblical story which is central in Jewish thought.
I continued: “Then what happened, Sadya? The Lord wanted to abandon the People of Israel because they had sinned. But Moses said to the Lord, ‘Take them back. They are your people. Forgive them,’ and God said: ‘I forgive them.’”
All this time, Sadya was nodding his head in agreement with the biblical story. At that dramatic point of the story I looked Sadya directly in the eye and said in the most serious manner I could: “Sadya, forgive the boy – take him back!”
Sadya went from a happy, ecstatic demeanor to a pale, serious and thoughtful face. There was a deafening silence in the courtroom and all eyes were on Sadya. David looked like a youth waiting for punishment from his father. Sadya looked at me, thought about what I said, looked at David, and said, “I’ll take him back.”
David, who was silent until now, jumped into Sadya’s arms and said, crying: “I couldn’t sleep all night thinking about how I could testify against Sadya at the trial. He was like a father to me.”
They hugged each other for a few minutes and no one in the courtroom said a word. Sadya and David then turned away and walked out of court, hand in hand, without saying a word. The two lawyers closed their briefcases and they too left the courtroom without saying a word.
I wrote in the court protocol that the case was closed by agreement and canceled the court fee.
There is a rabbinic tale that truth, law and justice are competing in Heaven and God banishes law so that truth and justice can triumph. However, there is another interpretation of the word “laws” at the beginning of Exodus Chapter 21 (Parshat Mishpatim), which better expresses how I felt after this trial; it states that the judge should attempt to bring the parties to an agreement before handing down a legal judgment.
This case exhibited the tension between law and justice. It also related to the role of the court in settling disputes. In our case, the agreement between the parties assisted them to correct behavioral mistakes and find ways to return to their correct relationship.
Sadya and David had an argument and needed an outside party to help them reconcile. A court judgment requiring Sadya to pay David would settle the case according to the law but both parties would feel that justice was not done and that the judgment erased a friendship between David and the person he loved. A court-imposed solution would probably have disappointed both parties.
The conclusion in this case, reached through court mediation, settled the actual dispute between Sadya and David, satisfied both parties and renewed a wonderful friendship. Courts cannot settle every dispute by mediation, but in certain cases, it is a good policy for them to attempt mediation prior to hearing the case or giving judgment. The judicial process obligates the judge to take into consideration and balance the tension between law and justice/equity.
The idea of how to bring the parties to an agreement came from the employer lay judge. At the trial level the panel consisted of myself, the professional judge, and a lay judge from both the employer and worker sectors. I have shared the bench with many lay judges and this case is an extreme example how they contribute their workplace experience and understanding of Israeli society to the judicial process. The combination of the professional judges’ legal knowledge and expertise in labor law, labor relations and social issues, combined with the lay judges’ practical workplace experience is at the core of the Labor Court’s unique role in the Israeli court system.
My experience has been that the judicial process is best served when the judge is open to learning from the wisdom and experience of the public representatives, who often see things in the hearing, at the workplace and in society that judges are not aware of or don’t quite understand. The Wisdom of Solomon is not a monopoly of judges but also present in many parts of society. In this case, the lay judge who gave me the Moses idea, knew the mentality of the Jerusalem population, Israeli society and what would probably influence Sadya.
Would Moses be able to settle a dispute in a courtroom outside Israel? I wonder whether the majority of Americans or Europeans have even heard the story of Moses or the Ten Commandments! This case shows the charm and humanity of Israeli society and its connection with the Bible. The lay judges who sat with me on this case were not religious Jews. Sadya and David did not wear kippot, but they still knew the Bible.
This case took place more than 40 years ago but I still remember it as one of my most moving experiences in the courtroom. It was a great feeling to have made peace between two people. Afterwards, I was appointed to the appeals court of the labor court system and presided over many high-profile cases, later becoming president of the National Labor Court in Jerusalem.
Often, I would sit with important people in chambers to settle disputes of nationwide importance, such as one between Benjamin Netanyahu – when he was finance minister – and former Histadrut chairmen Ofer Eini and Amir Peretz, as well other important figures in Israeli society. However, the settlement of the Sadya-David dispute has a special place in my memory and I am grateful to Moses for his significant help.
Editor’s note: The above case is part of a book which Steve Adler is writing about his experiences as an Israeli judge for 36 years. Adler was appointed a judge in the labor courts’ trial instance in December 1975 and retired in November 2010 from the appeal level, where he served as president (chief judge) of the appeal court and was also responsible for the five trial courts of the labor court system.