The employer's duty to inquire about the provident fund the employee chose upon commencement of employment.

An employee who had accumulated pension rights in the old Menachem Pension Fund (Mivtachim) with various employers over the years discovered that her new employer had enrolled her in a new Menachem Pension Fund.

The employee, who filed a lawsuit against the employer, claimed that upon her hiring, she had provided the employer with pay slips clearly showing that she had been insured in the old Mivtachim pension fund for all prior years. According to her, the employer’s act of enrolling her in the new Mivtachim fund without consulting her or obtaining her approval violated the employer’s duty of care to verify her pension arrangements.

While the plaintiff claimed substantial financial damages, the employer argued that the significant delay in filing the claim by the employee caused him considerable harm and worsened the company’s situation over time. The employer further contended that it was the employee’s responsibility to ensure her pension rights were preserved, and that no duty of care regarding this matter rested with him.

Regarding the delay in filing the lawsuit – the court reasoned that the pay slips the employee received from the employer over the two years prior to filing clearly stated her pension terms, and she could have monitored the relevant information on a monthly basis. In light of this, the court determined that the delay should be attributed to the employee and concluded that there was contributory negligence on her part in causing damages to the employer.

Regarding the issue of responsibility – the court accepted the plaintiff’s claim that she had provided the employer with pay slips explicitly indicating her pension terms in the old Mivtachim fund. Consequently, the employer’s argument that it was the employee’s responsibility to provide documentation from the old fund was rejected. The court held that the employer was required to verify with the employee, at the start of her employment, which pension fund she had chosen.

According to the court’s ruling, both the plaintiff and the employer caused substantial damages—the employee due to the delay in filing the claim, and the employer due to negligence in failing to confirm the pension fund selection.

The court ruled that apportioning responsibility in this case was the appropriate outcome and ordered the employer to pay the pension differential, calculated in present value, minus the contributory negligence of the employee due to the delay in filing the claim.

See case: Iris Melo v. Tel Mond Local Council, Case No. 34848-07-16, dated 20.12.2018, delivered by Honorable Judge Hadas Yahalom, Tel Aviv Regional Labor Court.