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Shemos-Fired After he Began Preparing for his Job

 

Question

I was recently hired to teach a class in a yeshiva. In order to teach the material, I purchased various seforim, for which I was reimbursed, and began preparing lessons. However, before I taught my first class, I was abruptly notified by the school that my services were no longer necessary. Do I have any monetary claim against the school since I already started by purchasing the seforim and preparing lessons?

Answer

The laws concerning hired workers are derived from a braiso that is discussed in the Gemara (BM 76B). The braiso discusses two stages in the employment of field workers. The first stage is where the owner of the field and the worker merely entered into an employment agreement. The Gemara rules that at this stage if either side reneges on his commitment, even though it is improper, there are no monetary consequences. However, if the workers actually went to the field and only then were told that there was no work for them to perform, the employer is obligated to pay them the full amount he agreed to pay them (with a minor adjustment for the fact that they didn’t need to work) even though they basically performed no field work.

From this ruling of the Gemara, the Rishonim derive that by going to the field in accordance with their employer’s directives, the employees advanced their agreement to the second stage. Since it was only at this stage that the employees learned that their services were no longer necessary, the employer is obligated to pay them their wages.

Thus, your question really boils down to this issue: Does your buying seforim and preparing lessons constitute an action that advances your agreement to the second stage? In order to answer your question we will determine the precise mechanics of how going to work in the field advanced the field workers’ agreement to the second stage, and then we can see if your actions are equivalent.

Many Rishonim (Ramban, Rosh and many others) understand that when the laborers physically went to the field, that action qualified as an act of kinyan. Every agreement between parties requires an act of kinyan in order to make the agreement binding. For example, when one buys a movable object and picks up the object that he acquired, an action that is called hagboho, the purchaser makes his agreement with the seller final. Before this act, both he and the seller may change their minds. The act of picking up the object makes the agreement final in the sense that both sides no longer may back out of their agreement.

Similarly, in order to prevent parties from backing out of an employment agreement, an act of kinyan is required. These Rishonim explain that the act of going to the field is an act that satisfies the requirement to perform a formal act of kinyan. They furthermore, gave a name to this act of kinyan which indicates why this act is considered a kinyan. The name they gave it is hascholas melocho – beginning to work.

This explains the difference between the two stages. The first stage is when the employer and employee made an employment agreement but did not yet perform an act of kinyan. Once an act of kinyan is performed, their agreement enters the second stage.

Based on the above, we can rephrase your question as follows. Does at least one of the two actions that I performed namely, purchasing seforim and preparing lessons, qualify as an act of kinyan? Specifically, is at least one considered to be hascholas melocho?

At first glance it would appear that it should be since the actions you performed were necessary preparations to enable you to teach, the job you were hired to perform. In this sense it would appear to be identical with going to the field which likewise is a necessary preparatory act that was performed in order to enable the laborers to work in the field, the job that the laborers were hired to perform.

To decide whether the actions really are equivalent it is necessary to delve further and understand the rationale why beginning to work constitutes an act of kinyan since all acts of kinyan are either derived from pesukim or were instituted by the Rabbonon based on logic. For example, by performing the act of hagboho a buyer acquires a movable object, because when the buyer raises the object he is exhibiting control over the object which is a feature of ownership. Beginning to work is not derived from any pasuk and the Gemara does not mention any rationale for its validity.

The Ritva (Kiddushin 47B c.v. ho) says that this kinyan was enacted by the Rabbonon in order to ensure that people’s work should not be done in vain. If workers who went to their job could still be fired, their going to the job would have been done in vain. Therefore, the Rabbonon enacted that they cannot be fired at this stage. If one follows this approach the yeshiva could not fire you either since your actions would also be rendered worthless if you could be fired.

The Chazon Ish (BK 21, 32 c.v veyesh) and Erech Shei (192, 13) understand that the critical feature why beginning to work constitutes a kinyan is not the act of beginning to work but the money that the employee earned by beginning to work. Just like when a groom (the one who is “acquiring his wife”) gives money to his bride the money serves as a kinyan (that is why giving a ring affects a marriage), and when a customer pays the seller for an immovable object the payment serves as a kinyan, so too when an employer gives money to his employee the money serves as a means of kinyan. Even if the employer did not yet physically give over money to the employee the fact that he has an obligation to pay him money suffices.

Therefore, if an employee performed an action for which the employer obligated himself to pay (even verbally) the fact that the employer obligated himself to pay serves as a kinyan. It is similar to when one does not give cash but gives over an IOU.

If one follows this approach in order to qualify as hascholas melocho the action which the employee performed must be one for which the employer obligated himself to pay. In the time of the Gemara (See BM 83A) employers paid their employees for the time they spent going to (but not coming home from) work. Since by going to the field the employer became obligated to pay the workers some money, he could no longer fire them. This is also the approach of the Machane Efraim (Sechirus Poalim 4) who therefore rules that hascholas melocho is not a kinyan for a voluntary worker since the employer never became obligated to pay him anything.

If one follows this approach, since your employer did not obligate himself to pay you for preparing lessons and buying seforim, your actions did not constitute hascholas melocho and the yeshiva could fire you.

The Ohr Someach (Sechirus 9, 4) offers a third approach. He understands that the reason hascholas melocho serves as a kinyan is because the employer began “using” his worker. This again is similar to acquiring immovable objects where use is a kinyan known as chazoko. For example, if one who buys a house begins living in the house (and he locks or unlocks the door) with the seller’s permission, even if he did not pay a cent, the seller cannot back out of their agreement. The Ohr Someach explicitly proves that as a consequence of his approach in order to qualify as an act of kinyan the work that was performed by the worker must be worth at least a pruto. Therefore, those who follow this approach would also rule that your actions do not qualify as hascholas melocho, since your actions are not usually remunerated.

The Chikrei Lev’s (CM 2, 72) reply to a related question shows that he also agrees that in order to constitute hascholas melocho the action must be one that obligates remuneration. He was asked to decide a dispute between the Jewish community and an employee who was hired to serve as a rabbi or cantor for a year. The employee claimed that the year began at the time he began traveling to his new job but the community claimed that it only began when he started working. The Chikrei Lev ruled that since we see in the Gemara that the travel of the farm workers to the field qualifies as hascholas melocho it must be that one deserves remuneration for going to his job.

We should note that the Levushei Mordechai (CM 1, 34) was asked a very similar question as yours. In his situation, a person was hired to serve as a community rabbi and he rented an apartment for his family and went to bring his family to his new community and then he was fired. The Levushei Mordechai ruled that the rabbi’s actions constituted hascholas melocho and he could not be fired. However, he just based himself on logic and does not cite any proof for his decision.

From the above we see that while there are sources that rule that you could not be fired, since many maintain that your firing was effective you cannot force your employer to pay you as an employee.

However, if you turned down another offer because you were hired for this job the Shulchan Aruch (333, 2) rules that you have a monetary claim against the yeshiva because they caused you a monetary loss.

We should note further that unless the yeshiva had a very good reason to fire you, their action is improper and they would be classified as an unreliable individual-mechusar amono (See Sema 333, 1). This is a lengthy topic and for further details see our sefer Mishpatei Yosher (page 343).

 

 

 

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