Labor Dispute (Nazareth) 27940-03-20 Dvir Cohen – Amud Farm Ltd. - part 12

In the slip (3,000 NIS according to Dvir)

  4,140 3,795 The employer must be charged for  the underpayment - 795 (3,000 NIS deducted) 4,935 07/2016-12/2016 2,250 were deducted in the slip.

  4,312.5 3,967.5 The employer must be charged for a lack of deposit - 967.5 4,780 01/2017-09/2019 12,375 were deducted in the slip, 16,500 were actually deducted 24,667.5  21,821.25 The defendants should be charged for failure to deposit 5,321.25 29,989 10/2019 - Worked 2 days a month and received a salary according to the paycheck 375 were actually deducted. 72  63 to charge in full, not deducted + NIS 375 that was not transferred to the health plan

438 510 Antitrust Deposit/Payment

        62,838

214. In general, in light of the calculation detailed above, the defendant should have deposited the sum of NIS 62,838 in respect of pension benefits, as agreed between the parties during the relevant periods. After the filing of the claim, the defendant paid Dvir the sum of NIS 54,905, and also, as detailed above, deposited in the Clal fund the sum of NIS 19,432, so that in total, the defendant deposited/paid the sum of NIS 74,337, and thus Dvir's claim for compensation due to the lack of a pension provision is fully swallowed up and is hereby dismissed.
215. As for the claim for the restitution of the sum of NIS 33,524.72 (paragraphs 30 and 69.3 of the statement of claim) – this claim is dismissed, since this claim was abandoned at the affidavit stage (see paragraphs 26-31 of Dvir' s affidavit, and Appendix E that was attached to it), even though Dvir repeated it at the summaries stage (section 46) incidentally and without any detail or explanation, and in any case it was not proven and even a dismissal on its merits, as we will clarify below.
216. In his testimony before us, Dvir admitted that he received his full net agreed salary throughout the period of his employment, which means that even after the deductions he received the net salary that was agreed upon, and this is sufficient to dismiss his claim (paras. 16-17, p. 18 of the protégé).  Moreover, and as stated, after the filing of the statement of defense, the defendants transferred the sum of NIS 54,905 to Dvir in respect of the deposits of part of the employer and the employee, so that the monies that were deducted with Dvir's consent, as appears from the pay slips, were returned to him at the end of the day.
217. Noam's claim – in his statement of claim, Noam petitioned to charge the defendants the sum of NIS 20,385 for compensation due to the lack of a pension provision (the sum of NIS 499 for the  first  period of employment + NIS 19,886 for  the second period of employment – paragraphs 22-28 of the statement of claim).  In his affidavit, Noam petitioned to charge the defendants the sum of NIS 16,88,347, of which NIS 1,232 was for the first period of employment, after the defendant deposited  the sum of NIS 36,291 for pension and compensation, which were paid after the claim was filed (paragraphs 22-32 of the affidavit, see also paragraphs 32-43 of the summaries).
218. In their statement of defense, the defendants claimed that for the first period of employment, the defendant made deposits in full, while the deposit during the second period  of employment was not made due to a  mistake, upon which the  defendants approached Noam in order to open a fund for him, but due to the lack of cooperation on his part, the provisions were not made.  The defendants further claimed that after the filing of the statement of defense, the sum of NIS 36,291 was transferred to the Menorah fund, in respect of pension and compensation provisions (sections 65, 73-75).  In the defendant's affidavit, it was claimed that out of the funds deposited into   Menora's pension fund after the filing of the lawsuit, a  total of 24,469 was deposited into the pension for part of an employee and an employer.  The defendants further claimed that Noam's salary was net agreed, and therefore nothing was deducted from his salary, and it was the defendant  who bore the employee's share of the pension (paragraphs 67-73).
219. As to our decision, after examining the arguments of the parties and all the evidence, including the calculation that Noam placed before us, we reached the conclusion that the defendant must pay Noam the sum of NIS 11,220, for the absence of a pension provision (the employee and employer part), as will be detailed below.
220. We will preface and clarify that we reject the defendants' claims regarding Noam's ineligibility for deposits for the months 01-05/2019, on the grounds that he did not work during this period, taking into account and in accordance with our determination above that in the months of 01-02/2019 and 05/2019 Noam was on the farm, as usual.  In addition, we are aware of our determination that Noam was absent from 01/03/2019 - 15/04/2019, a determination that could  have led to the conclusion that the defendant is not obligated to deposit into a pension fund for this period.  However, we are persuaded that in the circumstances of the case, andsince Noam's absence during this period was with the knowledge and consent of the defendant, who, for reasons reserved for him, chose to pay Noam full wages for it, whether at the expense of vacation or at the expense of any other arrangement that was not presented, the mere payment of wages entitles Noam to deposits during  the said period.
221. As noted, Noam's employment is subject to the expansion order in the agriculture sector.  Therefore, and in accordance with section 43 of the said order, the defendant must deposit 6% of Noam's salary in respect of an employer's share + 5.5% of an employee's share.  Moreover, as of July 2016, Noam is entitled to a beneficiary contribution rate in accordance with  the mandatory  pension extension orders (see also Appendix 20 to the defendant's affidavit).
222. As for the first employment period, the relevant period for Noam's claim, which has not become statute of limitations, is from 03/2013-03/2014.  After examining Noam's calculation, the pay slips and details of deposits in the Clal Pension Fund (Appendix B to Noam's affidavit), and based on our calculation, it appears that the defendant should have deposited the sum of NIS 2,168 for an employer's part of the pension (an employee's portion was not claimed for this period according to Noam's calculation), of which a sum of NIS 1,693 was deposited into the Clal Fund; It follows that the defendant underdeposited  the sum of NIS 475 during the first period of employment.
223. As for the second period of employment, as stated, there is no dispute that the defendants did not deposit anything for Noam during the second period of employment.  After the filing of the statement of defense, the defendants deposited the sum of NIS 24,469 into the Menorah fund in respect of a pension (as stated in  the severance pay chapter above, a total of NIS  11,827 was deposited as  severance pay).
224. After reviewing the parties' calculations, we accept a pleasant calculation. Let us explain.  First,  Noam's calculation was made according to the gross salary reported on the pay slips, which according to the defendants is also the determining salary (paragraph 73 of the statement of defense, paragraph 74 of the defendant's affidavit).  Second, both  Noam's calculation and the defendants' calculations  were made in accordance with the rates of contributions in accordance with the general expansion order in the agriculture sector and the beneficial arrangements in  the mandatory pension expansion orders, which we determined apply to Noam's employment.  Thus, the parties disagree with respect to the provision for the months 01-05/2019, in which, as stated, we have already decided and determined that Noam worked in it, so that the defendant should be obligated to deposit a pension for her.
225. From here we will turn to the details of the calculation we made:

226. In general, Noam's claim for compensation due to the lack of a pension contribution is partially accepted, so that he is entitled to the sum of NIS 11,220 (NIS 475 + 10,745).

Annual Vacation

227. Basic principles that "with regard to claims for vacation pay/vacation pay/vacation redemption, the burden of proof regarding the vacation balance is on the employer. It was held that the employer is obligated to know how many vacation days he owes his employee, and how much he actually gave, and to maintain a vacation register and record in it the necessary details, as stated in section 26 of the Annual Leave Law, 5711-1951 (hereinafter: the Annual Leave Law) and in the Annual Leave Regulations (Vacation Register), 5717-1957" (Kaplan v. Levy, above).  It was further ruled that insofar as there is no documentation of annual vacation days, including in the pay slip, "a factual presumption arises in accordance with the provisions  of section 26B(c) of the Wages Protection Law, 5718-1958, according to which the employee was not given any compensation for vacation days, and he is held to have not used a single day of vacation during the period of his employment, unless the company proves otherwise" [Labor Appeal (National) 29219-10-15 Aeronautics in a Tax Appeal - Shai Shamai,  Dated 08/01/2018].
228. Dvir's claim – In the statement of claim, Dvir petitioned to charge the defendants the sum of NIS 53,200 for the redemption of annual leave, in accordance with section 36 of the Administrative Extension Order, and set the  value of the vacation day at NIS 490.32, based on a salary of NIS 12,000.  Dvir did not clarify the number of days of annual leave that he claimed  he was entitled to redemption.  Alternatively, Dvir petitioned to charge the defendants the sum of NIS 35,303 under  the expansion order in the agriculture sector.  In his lawsuit, Dvir referred to the 11/2019 pay slip, which he claimed had not been paid, in which it was recorded that Dvir was entitled to the sum of NIS 17,228 for the redemption of annual leave (paragraphs 42-47 of the statement of claim).
229. In his affidavit, Dvir petitioned to charge the defendants the sum of NIS 53,200 (paragraph 52 of the affidavit), while claiming that he was entitled to the sum of NIS 34,286 in net values, according to a salary of NIS 9,500 net (paragraph 49 of the affidavit).  Dvir further claimed in his affidavit, for the first time, that the defendants should have set aside the sum of NIS 44,100 net to an insurance fund or pension fund from his total salary for annual leave, in accordance with section 26 of the Administrative Extension Order (paragraph 50 of the affidavit).  Dvir supported his claim with a calculation that he prepared and attached as Appendix T to his affidavit, and an examination of the calculation shows that the amount claimed is for 108.5 days of annual leave, for the last 3 years of employment and the current year (12/2015 to and including 10/2019).
230. In their statement of defense, the defendants denied Dvir's entitlement to annual leave, on the grounds that Dvir took advantage of vacation every month.  According to the defendants, in the last three years of his employment, Dvir went abroad twice in addition to vacations in Israel, and the defendant even "lended"  him money on a number of occasions for the purpose of renting a car (paragraph 83 of the statement of defense).  In his affidavit, the defendant objected to Dvir's claims in his affidavit regarding the provision for an annual vacation fund, and argued for the expansion of a prohibited front (paragraph 70 of the affidavit).  The defendant reiterated the claims in the statement of defense and claimed that Dvir used all the days  of the annual leave and that the defendant paid for them (paragraph 75).  The defendant further claimed that during the period of his employment, Dvir went on  vacation for a week each time in Israel, in addition to the 21 days in which he traveled abroad, while referring to the entry and exit report from the country (paragraph 72 of the affidavit and Appendix 12 that was attached to it), and to the invoice attached for renting a car (Appendix 13 to the affidavit).  The defendant further claimed that Dvir was entitled to a maximum sum of NIS 22,749, for redemption of annual leave, which is 3 months of salary, without any calculation attached  (paragraph 77 of the affidavit).
231. As to our decision, after examining the arguments and testimonies of the parties, and all the evidence, including Dvir's calculation, we have reached the conclusion that Dvir is entitled to redemption of annual leave in the sum of NIS 34,270, for 74.5 days of annual leave. We will explain below.
232. We will preface the beginning of the matter and note that we have not found a way to adopt Dvir's calculation. First, we accept the defendants' argument for the expansion of a prohibited façade  in relation to the calculation made in accordance with section 26 of the Administrative Expansion Order.  Second, the calculation relates to net and not gross values, and this is sufficient to reject it, since in accordance with the case law, the calculation will be made in gross values (the Gav case above).  Third, in his calculation, Dvir did not give expression to vacation days that he used during the  period of his employment, as appears from the pay slips and those arising fromhis trips abroad, as appears from a certificate of clarification of details about a passenger that was attached to the defendant's affidavit as Appendix 12 (hereinafter –  the Entry and Exit Report);  In his testimony before  us, Dvir did not know how to explain why he demanded  full redemption of vacation pay (paras. 34-39, p. 28, paras. 1-4, p. 29 of the protégé).
233. As to the number of days to which Dvir is entitled – the starting point is that the pay slip should not be relied upon in relation to the accumulation of annual leave, since this is an accrual that was not made in accordance with the administrative extension order that applies to Dvir's employment. Moreover, the parties do not disagree that Dvir's right to annual leave is for the last 3 years of his employment together with the current year; Among other things, since the balance of annual leave in the pay slips does not reflect the actual accumulation and utilization, as will be explained below.
234. In accordance with Section 36 of the Administrative Extension Order, Dvir is entitled to 94.5 days of annual leave during the period relevant to the claim, and taking into account the statute of limitations. We will detail below:

For the years 2016, 2017 and 2018: Dvir is entitled to 72 days of annual leave (for the years 4-5, 21 days each year + for the 6th year, 30 days).