Case:


Ruling: Although there are dissenting opinions, the accepted ruling is that beit din may not force someone to pay lmshd (see Rama, Choshen Mishpat 12:2). A ruling obligating payment, even if it states that it is based on lmshd, is considered forcing payment since hotza’ah lapo’al (the government authority that ensures payment of court awards) can implement it against the defendant’s will. Therefore, an explicit provision must be added to the ruling disallowing use of hotza’ah lapo’al.
One dayan said that since the ruling is not based on strict law, it cannot be "incorrect" and therefore the ruling cannot be appealed. A second dayan disagrees, saying that even lmshd has rules that must be followed, and the ruling explained the beit din’s rationale, which can be evaluated.
Def claims that the fund is not salary but an incentive to take the job, and as such should not apply to someone who embezzled. Also, it is important for there to be fear of the consequences of embezzlement. The gemara (Bava Metzia 83a) tells that Rabba made an employer pay lmshd the salary of one who negligently broke barrels, because they were poor and had worked hard. We see from that gemara that we do not easily decide that such payments encourage negative behavior.
Nevertheless, here there is no basis for standard lmshd, which requires there to be something upon which to obligate, just that we do not implement an exemption. If the rights to the fund were part of the pay, we could say that since pl worked diligently (other than embezzling), she can deserve pay even if, for example, there were a clause that exempted def in such a case. However, the fund is not salary but a condition of employment, as can be illustrated by legal differences in their regard. Therefore, there is no justification to overrule the provision in the employment contract that the funds will not be given if the worker is fired on suspicion of criminal activity.
Tosafot (Bava Metzia 24b) says that even in the case of the aforementioned gemara, there were not grounds for regular lmshd but rather a higher level of righteous action. This element, which is related to matters of tzedaka, does apply here. Pl is poor, her husband is sitting in jail, and she has to support her family after being fired. Therefore it is proper for def to give her severance pay and the contents of the fund. That being said, def can refuse to pay based on the opinions that lmshd cannot be forced.