Before Rosh Hashanah I hired a roofer to repair a leak in the roof of my house in Eretz Yisrael and I gave him a down payment. We didn’t set a date for the completion of the job because I understood that it would be done right away since it was obvious that I needed the job to be done before the onset of the rainy season. The roofer came twice to take measurements but when I saw that he wasn’t doing the actual repair I started calling him almost every day and he kept reassuring me that he will do it. Finally, after two months, I gave up on him and brought in a different roofer who promptly completed the job. Am I entitled to the return of my entire down payment since the first roofer didn’t actually do the job?
In order to answer your question we have to formulate your question in halachic terms.
There are two possible relationships an employer can have with someone he hires. If someone just makes a verbal agreement to hire an individual, then the person he hired is not an employee in the halachic sense. If the employer changes his mind at this stage the only liability he could have is for any damages he caused to the person he hired. For instance, if the worker turned down a different job because he counted on the job he was hired to do, the employer who changes his mind could possibly be liable for the loss of potential earnings which he caused. However, if there was no damage, the employer has no liability
If the employer goes a step further and makes a kinyan with the employee, then they have a full employer-employee relationship. If at this stage the employer changes his mind, he is in effect firing his employee and the issue is not damages but whether the employee is entitled to wages. Therefore, we must determine if you made a kinyan.
There are two acts that you did which, according to many, constitute a kinyan. One was when you made a down payment to the roofer you may have made a kinyan of kesef with the roofer. The opinion of many meforshim (including Rashi on Bava Metsiyo 48A) and poskim (e.g. Machane Efraim (Sechirus Poalim 3), Nesivos (333, 1) and Chazon Ish (Bava Kama (21, 28)) among others) is that a kinyan of kesef is effective when hiring a worker. A second act of kinyan, according to many including the Tur (333, 2) and others (Rivash res. 476, Sema (333, 16), Shach (333, 14), was when the roofer took measurements because that constitutes the start of his work. These poskim maintain that starting to work constitutes a kinyan, even for workers who are not paid for their time but for their performance of a job. Thus, we have to investigate whether you were permitted to fire your worker at the time and in the manner in which you did.
It is clear, and this is the ruling of the Pischei Choshen (Sechirus (10, footnote 4)(, that one who puts off performing his work is considered derelict in performing his job. The Gemoro (Bovo Metsiyo 109 A) rules that an employer may fire a derelict employee. However, the Gemara rules that generally one must warn his employee before firing him. Thus, if you had warned your roofer that if he doesn’t do the job within, say a week, you will hire someone else, it would be clear that you acted properly. However, since you never warned the roofer explicitly, being derelict alone would not justify your firing him.
We should clarify what is at stake if you did not act properly. If you were not justified there are two possible liabilities. The first is that you would be liable for the work he actually did, which in your case is his two visits and, perhaps other preparatory work. In general, one who fires his employee improperly must also pay him for loss of potential income. Thus, if the employee could not find alternative opportunities, the employer would have to pay him his wages almost as if he worked. (It is reduced slightly since people would take a cut in salary if they did not have to actually work. This is dubbed sechar batoloh.). In your case, the second payment does not apply since it is obvious that he had other work because otherwise he would have done your job. Thus, the following discussion will only determine whether you are liable for the actual work that he performed.
The Gemoro, cited above, says that employees who caused irreparable damage may be fired even if they were not warned. Thus, a shochet who slaughtered improperly and thereby rendered the meat a neveilo-forbidden to be eaten by a Jew, may be fired without warning since it is understood that this is not what he was hired to do. However, it is difficult to simply rely on this Gemara since the Ramabam (Sechirus 10, 7) limits the sanction to fire without warning to a public employee, and your employee was working for you privately. Also the Ra’avad who disagrees with the Rambam says the employee must have committed an infraction three times before he may be fired without warning.
However, if we study further we can justify your firing the roofer without warning. Rav Moshe Feinstein (Iggros CM (1, 47)) explains that the reason a warning is necessary is because if there is no warning we cannot assume that the employee will cause future damage to his employer. It is only if the employee failed to heed the employer’s warning that we can assume that he will cause future damage. Therefore, in your case where damage was imminent, you were justified in firing your employee even though you didn’t warn him that you would fire him, since even without that warning it was clear that continuing with your employee was likely to cause you future damages.
Further proof that warning is not necessary if future damage is clear can be derived from another anecdote that is recorded in this section of Gemara. The Gemara writes that when a sharecropper of Rav Yosef passed away leaving five sons-in-law, Rav Yosef refused to allow the sons-in-law to continue their father-in-law’s job even though the father-in-law had a permanent position. Rav Yosef justified his action with the argument that it was most likely that the sons-in-law would be derelict and cause him damage. This is stated very clearly by the Me’iri, but most likely all agree. Thus we see again that warning is not necessary when damages are likely.
A further reason that you are not liable is because the Chazon Ish (Bava Kama 23, 2) and Rav Moshe Feinstein (Iggros CM 1, 75) both write that custom overrides the rules of the Gemara because when one makes an employment agreement it is conditioned by local custom. It seems that a delay of two months is outlandish and the custom is to dismiss employees who procrastinate to such an extent.
In conclusion: Ideally, you should have warned the roofer explicitly that if he fails to complete the job by a certain date you will cancel your agreement. However, in this case because of the likelihood of damages and the outlandishness of the roofer’s procrastination, you are not liable for even a partial payment and you are entitled to a total return of your down payment.