Case Number
HCJ 1268/09
Date Decided
8-27-2012
Decision Type
Original
Document Type
Full Opinion
Abstract
Facts: The petitioner began working at the Israel Prison Service (“the IPS”) in 1986. In April of 2009, two months after her fifty-seventh birthday, she was forced to retire. At this age, she was already six months past what was defined in the Civil Service Retirement Law, 5730-1970, as the “retirement age for IPS wardens.” According to the IPS procedures relating to IPS employees of her age and experience, her continued employment after that age was dependent on approval by the IPS Commissioner (following a recommendation made by an internal committee). Such extensions of employment past the “retirement age for IPS wardens” could not be granted for more than one year at a time, and could not be granted for a total of more than three years or for any period past the age of 60, except in exceptional circumstances. The mandatory retirement age established by law for civil servants except IPS employees and police officers was (and is) 67, and retirement can only be forced at an earlier age if the Civil Service Commissioner is persuaded by the worker’s supervisor that the worker is no longer fit to serve in his position, in a proceeding initiated by the supervisor. The petitioner argued that the internal IPS procedures pursuant to which she was ultimately forced to retire at the age of 57 were discriminatory and unlawful. She also argued that the IPS Commissioner’s claim that her retirement was part of an overall agency policy eliminating her particular rank was false.
Justice Hayut, with Vice President (emeritus) Rivlin, Vice President Naor and Justices Danziger, Hendel and Fogelman concurring: The retirement arrangement established for IPS wardens, which stipulates, as its starting presumption, that wardens (with at least ten years of service) must retire at the age of 57 unless specific extensions are granted, must be struck down. The retirement arrangement wrongfully discriminates between IPS workers (at least those who serve in professional positions), on the one hand, and all civil servants holding similar positions, on the other hand.
The respondent did not prove the necessity of this starting presumption or the difference between this arrangement and the practice followed by the civil service. The discrimination caused by the IPS procedure was particularly pronounced with respect to professional and managerial employees. Although it might have been argued that IPS workers who hold “operational” positions experience “burnout” in their jobs at an earlier age than do other civil servants, that issue could have been handled through an optional earlier retirement age. There is certainly no justification for mandatory retirement at the age of 57, for those holding professional and managerial positions.
With respect to the petitioner’s particular case, the respondent argued that the main reason for his failure to extend her employment was not her age but rather an IPS policy of phasing out the rank that she held at the time. However, even if this argument is accepted as a factual matter, this consideration cannot serve as the determinative factor relied upon in the decision to force her into early retirement.
Thus, to the extent that it relates to IPS workers serving in professional and managerial positions, the internal IPS procedure must be set aside, but the IPS will be allowed a one-year period to prepare a new, non-discriminatory arrangement. The decision regarding the petitioner’s own forced retirement is revoked and she is to be reinstated at the IPS under the same terms as before her retirement, in accordance with current IPS needs.
Justice Joubran, concurring in part and dissenting in part, found that the IPS retirement procedure was reasonable and should, as a whole, stand. In general, once the legislature had established that IPS and Israel Police workers could have different retirement arrangements than other civil servants, the Court cannot determine that the IPS arrangement established by the statutorily authorized IPS Commissioner is unreasonable only because it is different than the civil service procedure. Furthermore, mandatory retirement is a theoretically reasonable form of administrative discrimination, because of the public interests that it serves. However, certain aspects of the IPS procedure – specifically the granting of extensions for only one year at a time and the provision prohibiting extensions past the age of 60 except in very exceptional circumstances – had no rational basis and were therefore disproportionate. Furthermore, in the petitioner’s specific case, the respondent had shown that the IPS’ own internal procedure had not been followed, that the criteria for evaluating an application for extended employment had not been applied and that the petitioner’s employment was terminated only because the IPS wished to phase out her rank. Since the respondent had not shown that younger workers with the same “undesirable” rank were also dismissed, it was clear that the decision to force the petitioner’s retirement was based entirely on her age; in this specific case, such age-based discrimination had no rational justification.
Keywords
Labor -- Discrimination
Recommended Citation
Hayut, Esther; Naor, Miriam; Vogelman, Uzi; Joubran, Salim; Rivlin, Eliezer; Hendel, Neal; and Danziger, Yoram, "Zozal v. Israel Prison Service Commissioner" (2012). Translated Opinions. 417.
https://larc.cardozo.yu.edu/iscp-opinions/417
