Photo Credit: Jewish Press

Mr. Melamed taught Jewish studies at a Jewish elementary school. He was an average teacher and often called in sick or took off for other reasons.

One day, Mr. Melamed e-mailed the school: “I won’t be able to come in today and tomorrow due to personal reasons.” The principal, Rabbi Rubin, tried calling him, but was unable to get through.

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When Mr. Melamed returned two days later, Rabbi Rubin asked him, “Where were you?” Mr. Melamed didn’t feel comfortable telling him, and a week later Rabbi Rubin discovered that Mr. Melamed had gone on a two-day skiing trip to the mountains.

Rabbi Rubin decided to fire him. Mr. Melamed subsequently sued the yeshiva for breach of contract, and both parties then came before beis din with a basic question: “Is a yeshivah allowed to fire someone without warning?”

Rabbi Dayan, the head of the beis din, replied: “The Gemara [Bava Basra 21a-b] discusses Melachim Alef 11:15, which states that Yoav smote every male in Edom. It explains that Yoav’s childhood teacher mistakenly taught him that the Torah commands us to ‘timchech es zachar Amalek’ (destroy the males of Amalek) instead of ‘timcheh es zeicher Amalek’ (destroy the memory of Amalek).

“The Gemara then says that certain people – including teachers, shochtim, doctors, and mohalim, whose malpractice cannot be undone – do not need to be warned before being fired since they’re considered to have already been warned.

“The Rambam and Shulchan Aruch apply this rule to public employees whom the community appoints, but the Rema cites the Tur who maintains that it applies even to private tutors [Choshen Mishpat 306:8].

“The Rema also cites the Maggid Mishneh, who writes that only if a worker fails regularly can he be fired without warning. The Mordechai, though, writes that even a teacher who negligently skipped individual days or a full 24-hour period should be replaced since lost Torah learning is irreplaceable! [Sma 306:21].

“The Chazon Ish [Bava Kamma 23:2] writes that an employer is not obligated indefinitely to an employee, but people who are customarily appointed to a lifelong position can’t be fired without cause [Pischei Choshen, Sechirus 10:9].

“The Haamek She’eilah [142:5] writes that one may fire a worker if the damage is irrevocable. The Tzitz Eliezer [7:48:10] addressed the case of a worker who was frequently absent due to medical reasons, which caused his organization substantial losses. He was fired without warning, and the Tzitz Eliezer said the organization acted within the law since his absence caused the organization irrecoverable loss.

“Nonetheless,” concluded Rabbi Dayan, “if warnings are expected, they must be warned before being fired. The common practice must be adhered to” [Choshen Mishpat 331:1-2].

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Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, headed by HaRav Chaim Kohn, a noted dayan. To receive BHI’s free newsletter, Business Weekly, send an e-mail to subscribe@businesshalacha.com. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, call the confidential hotline at 877-845-8455 or e-mail ask@businesshalacha.com.
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