In the month of 07/2018: from 02/07/2018 to 05/07/2016 - antitrust 4 days. An examination of the 07/2018 slip shows that the aforementioned absence was not documented in the slip, and therefore these 4 days should be added to the credit for taking advantage of the vacation.
- To complete the picture, we would like to clarify that in our opinion, the period in which Dvir was absent from October 23, 2019-October 29, 2019 should not be deducted, since this is a period after the termination of his employment. Although we determined that Dvir was employed until 10/2019, the parties did not clarify the exact date on which Dvir's work ended, but we conclude from the pay slip of October 2019 that Dvir did not work until near the end of the month, since according to the pay slip he worked only two days, and in any case the burden of proving that his absence in October 2019 should be deducted from his annual leave is on the defendants. And they did not relate or argue at all in relation to the aforementioned trip.
- As to the value of Dvir's annual vacation day, the parties disagree with respect to the value of the vacation day. In the statement of claim, Dvir put the value of the day at NIS 490.32 gross, in accordance with the salary of NIS 12,000 (section 44), and as part of his calculation attached to his affidavit, he set the value of the vacation day at NIS 316 net or alternatively at NIS 233.33 net according to the slip. On the other hand, and in accordance with the calculation in the salary slip for the month of November 2019, in which a final account was supposedly made, the defendants set the value of the day at NIS 292. The parties did not clarify how their calculations were made in relation to the value of the vacation day.
- Considering Dvir's salary – NIS 11,500 and since Dvir worked at least 6 days a week (see his testimony that he worked on Saturdays alternately (paragraph 64 of his affidavit), therefore the value of an annual vacation day is NIS 11,500 gross / 25 days = NIS 460 gross. Therefore, Dvir is entitled to redemption of annual leave: NIS 460 * 74.5 days = NIS 34,270 .
- In total, Dvir is entitled to annual leave redemption in the sum of NIS 34,270 .
- Noam's claim – In the statement of claim, Noam petitioned to charge the defendants the sum of NIS 13,769, for 49 days of annual leave in accordance with section 24 of the Expansion Order in the Agriculture Industry, after setting the value of the annual vacation day at NIS 281. In his claim, Noam referred to a salary slip 11/2019 that was issued and not paid as claimed, in which the defendant admits that he is entitled to the sum of NIS 5,328 for the redemption of annual leave (paragraphs 39-40 of the statement of claim).
- In his affidavit, Noam petitioned to charge the defendants the sum of NIS 8,711 for 31 days of vacation (section 47). According to Noam, in his 10/2019 pay slip, it was documented that he took 7 days of annual leave for which he did not receive payment. In his summaries, Noam referred to the documentation of vacation utilization in pay slips 08/2019 and 10/2019, and added that he is entitled to 49 days according to the expansion order in the agriculture sector, of which 20 days must be deducted, and from here he petitioned for payment of the sum of NIS 8,149, for 29 vacation days (paragraphs 84-86 of the summaries).
- In their statement of defense, the defendants denied Noam's entitlement to payment of annual vacation redemption, and claimed that Noam took advantage of vacation every month, and that the utilization was not inadvertently documented in the pay slips (section 81). In addition, the defendants argued that the 5 months paid to Noam during which he was absent from work and his wages were paid in full (section 82) should be deducted.
- In his affidavit, the defendant reiterated the claims in the statement of defense and claimed that Noam took advantage of all the vacation days to which he was entitled, and received payment for them. The defendants added that Noam was entitled to 49 days of annual leave during the period of his employment, when in fact he used 74 days during the period of his employment, including trips abroad, as indicated by the exit and entry report (Appendix 18 to the defendant's affidavit), in addition to vacations in Israel that were at least 7 days per year. Moreover, it was claimed that Noam got married on April 6, 2018 at the farm and was absent from work for 10 days in order to plan the event and prepare the farm for the wedding (Appendix 19 to the defendant's affidavit). The defendant added that Noam admitted in his affidavit that he was absent for a month and a half in 2019 (paragraphs 61-66 of the affidavit).
- As to our decision, after examining the arguments of the parties, the testimonies and all the evidence, we have reached the conclusion that Noam's claim for the redemption of annual leave should be rejected, since we are convinced that during the period of his employment, Noam used all the days of annual leave to which he was entitled in accordance with the expansion order in the agricultural sector.
- As to the number of days of annual leave to which Noam is entitled – again, the starting point is that the pay slip should not be relied upon in relation to the accumulation of annual leave, since the slip does not include documentation of the annual vacation days that were actually used, as has been proven, and in any case the accumulation was not made in accordance with the expansion order in the agriculture sector that applies to Noam's case. Thus, in fact, the balance of annual leave in the pay slips does not reflect the accumulation and utilization.
- We are aware that in the absence of documentation of vacation days in the vacation register or in the pay slips, and in accordance with the case law, Noam is held to be absent from work, but the defendants have lifted the burden and proved the actual use of vacation days; As we will detail below.
- In accordance with Section 24 of the Expansion Order in the Agriculture Industry, Noam is entitled to 12 days of annual leave for the years 2016-2018 (1-3 for employment), and 12 days for 2019 (the relative portion of 16 days), and antitrust is entitled to 48 days.
- The number of days used by Noam - First, it was proven that Noam was absent for 6 weeks (about 42 days) after the birth of his daughters in March 2019, for which he received full compensation (paragraph 71 of Noam's affidavit, and his testimony: S. 7-8, S. 30, p. 37, S. 1, B. p. 38. 8-20, s. 33 at p. 38 of the prot.), in addition to the absences on other days when he was in Tel Aviv or accompanied his daughters to the hospital (his testimony: in s. 2-3, p. 39 of the prot). Moreover, an examination of the entry and exit report shows that Noam was absent for dozens of days during the following periods:
In the month of 05/2017: from 17/05/2017 to 09/06/2017.