מעסיק – דע את זכויותיך בעקבות אירועי שריפה
*מאמר משפטי מאת עו"ד הילה אראל-שמש
גל השריפות שפקד את הארץ בשנת 2016 העמיד לא מעט מעסיקים בפני דילמות לא פשוטות. מה דין השבתת העסק כתוצאה מאירוע שריפה? מי נושא בעלויות של הוצאת העובדים ל"חופשה"? האם יש משמעות להגדרת השריפות כאירועי טרור?
במיוחד עבורכם, ריכזנו את הדגשים בנוגע להתנהלות במקרי חירום בהתאם:
1. מעסיק רשאי להוציא את העובדים לחופשה מרוכזת אם עומדים להם ימים צבורים;
במידה ולא עומדים לרשותם ימי חופשה, חלה על המעסיק חובת תשלום שכר מלא.
על המעסיק לתת לעובדים התראה של 14 ימים במקרה של חופשה מאולצת בת מעל שבוע,
יחד עם זאת, בנסיבות מיוחדות אלה ניתן להגיע עם העובדים להסכמות על התראה קצרה יותר.
2. במידה שעולה הצורך בפיטורים עקב השבתת העסק, דיני הפיטורים חלים במלואם.
חשוב לזכור כי אם הוכרז מצב חירום, חל איסור לפטר עובד. במידה והפיטורים הם כתוצאה מסיכול חוזה עבודה (מצב בו אין אפשרות אובייקטיבית להמשיך ולקיים את יחסי העבודה בשל אירוע שלא ניתן היה לצפות את התרחשותו), תיתכן אפשרות של שלילת הפיצויים או חלקם.
3. עובד הנעדר מהעבודה בגלל נזקים שנגרמו לביתו או לרכושו, לא יהא זכאי לתשלום עבור יום היעדרות, להבדיל ממצב חירום. ההיעדרות יכולה להיחשב חופשה בתשלום, בתנאי שעומדת לזכותו מכסה צבורה. יש להניח כי עובדים אשר פונו מבתיהם או אשר נגרם נזק לרכושם יבקשו להעדר. במצב זה, הואיל ואין להם זכות חוקית להעדר, מצופה כי המעסיק יגיע עמם להסכמות כאלה ואחרות כגון מימוש ימי חופשה צבורה או עתידית או חל"ת (חופשה ללא תשלום).
4. במידה ונדרשת השבתת העסק לצורך שיקומו והמעסיק מעדיף להימנע מפיטורים, ניתן להוציא את העובדים לחופשה ללא תשלום (חל"ת) עד שיתבהר אם העסק יוכל לשוב לעצמו. כמובן שמשך החל"ת צריך להיות סביר ומותאם לנסיבות. ישנה אפשרות שעובד היאולץ לצאת לחל"ת יטען להתפטרות מחמת הרעת תנאים, טענה שתיבחן נוכח הנסיבות.
אם יקבע כי ההצתה היא על רקע פעולת איבה, יהא המעסיק זכאי לתבוע פיצוי מהמדינה במסגרת חוק מס רכוש וקרן פיצויים תשכ"א 1961 עבור ההוצאות ששילם לעובדיו בגין האירועים.
תוכן מאמר זה לא מהווה ייעוץ משפטי ויש לבחון כל מקרה לגופו.
*הכותבת עוסקת בדיני עבודה ובעלת משרד עורכי הדין אראל-שמש ושות'.
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