In the month of 07/2018: from 02/07/2018 to 05/07/2018.
In the month of 08/2018: from 23/08/2018 to 17/09/2018
December 2018: December 12, 2018 to December 16, 2018
Moreover. Noam admitted that he had been absent for three weeks when he went on a honeymoon and received compensation for them (paras. 38-39, p. 46, and p. 47 of the protégé).
- In general, Noam took advantage of more than 100 days of annual leave during the period of his employment and received full compensation for them, and this is far beyond his entitlement to annual leave, and therefore his claim under this component is denied.
Convalescence Pay
- Dvir's claim - In the statement of claim, Dvir petitioned to charge the defendants the sum of NIS 33,779 for convalescence fees, after deducting the sum of NIS 3,704.52 paid in the months of 09-10/2017. Alternatively, Dvir petitioned to charge the defendants the sum of NIS 19,656, in accordance with the 11/2019 pay slip (paragraphs 49-50). In his affidavit, Dvir put his claim at NIS 37,483, and added that the defendants should have set aside the sum of NIS 38,109 for convalescence pay (paragraphs 54-57). Dvir attached to his affidavit a calculation (Appendix 11). In his summaries, Dvir objected to raising the defendants' claim that he was paid convalescence pay every month and which were inadvertently recorded as travel on the grounds that it was an extension of a prohibited front (paragraph 83 of the summaries), and added that the defendants' claim that his salary was paid at all convalescence pay should not be accepted, an argument that is inconsistent with the payment of convalescence pay separately in the months of 09-10/2017 (paragraph 84 of the summaries). Therefore, Dvir petitioned to charge the defendants the sum of NIS 33,779 for convalescence pay (paragraph 87 of the summaries).
- The defendants did not raise in their statement of defense a claim on the merits of Dvir's claim for convalescence pay, other than a general denial of entitlement and the method of calculation (section 85). In the defendant's affidavit, it was claimed, for the first time, that the defendant paid Dvir the sum of NIS 1,629.81 for a vehicle, at the expense of convalescence/vacation pay (section 74), in addition to a monthly payment for convalescence and which was inadvertently reported in the pay slips as travel expenses, including those paid in the months of 09-10/2017, and that the antitrust was paidNIS 24,005 for convalescence pay (sections 92-93).
- Noam's claim – in his statement of claim and affidavit, Noam petitioned to charge the defendants the sum of NIS 13,181 for convalescence pay, in accordance with section 32 of the Expansion Order in the Agriculture Industry. Alternatively, Noam petitioned to charge the defendants the sum of NIS 8,694 as a result of the November 2019 pay slip (paragraph 41 of the claim, paragraphs 48-50 of the affidavit). Noam attached a calculation to his affidavit (Appendix 9). In his summaries, Noam objected to the defendants' claim that he was paid convalescence pay every month, which was inadvertently recorded as travel expenses, on the grounds that it was an extension of a prohibited front (paragraphs 79-83).
- In their statement of defense, the defendants claimed that Noam was entitled to the sum of NIS 5,670 for 13 days of convalescence, but that the defendant had the right to deduct these sums from the funds he fraudulently took, for the five months of wages in which he did not work (section 84). In his affidavit, the defendant claimed, for the first time, that the defendants paid Noam convalescence pay every month, which were inadvertently reported in the pay slips as travel expenses, and that business restrictions were paid NIS 30,195 (section 79).
- As to our decision, we reject the defendants' arguments that the payment recorded in respect of travel in the plaintiffs' pay slips is payment for convalescence pay, and which due to mistake was recorded as travel expenses, both on the grounds that it is an extension of a prohibited front, since the claim was first claimed in the defendant's affidavit. and from the reason according to which we are persuaded that the law of the claim is also a rejection on its merits. Let us explain.
- First, the defendants do not dispute the plaintiffs' entitlement to convalescence pay. Therefore, and in accordance with case law, "when an employer admits an employee's entitlement to wages or other payments that he has received in connection with his work and in connection with the termination of his employment, and his claim is that they have been paid, the burden of proof is on the employer" (Kaplan v. Levy), and the defendants did not meet this burden, as we determined at length above regarding the plaintiffs' salary, which in our opinion includes the increase reported in the pay slip as travel expenses that were proven to have not been paid because the plaintiffs lived on the farm. As stated above, we were persuaded that this was an artificial split of the agreed wage, and therefore we were persuaded that it was not an addition of any kind, including convalescence pay.
- Second, "as has been ruled more than once, it is possible to split the convalescence pay, subject to the consent of the employee, and to pay it proportionally every month, even if the total amount exceeds the liability under the law... It was also ruled that "the existence of such consent, which is subordinate to the 'default' set forth in the law, can be learned both from the explicit expression of the parties and from their conduct, with the burden of proving it on the employer... [Labor Appeal (National) 55490-06-14 Angela Louise Godfrey - The Israeli Movement House Demolitions, dated 07/08/2018]. The defendants also did not meet this burden, and did not prove the plaintiffs' agreement to split the convalescence pay as claimed, since no employment agreement or notice of working conditions was presented, and no relevant witness testimony was brought before us, including the bookkeeper or the person who was in charge of preparing the pay slips. Let us elaborate.
- When the defendant was asked about the payment of convalescence pay, he gave evasive and contradictory answers. In his testimony before us, the defendant testified that this was a mistake on the part of the accountant, and later stated that he had paid convalescence pay in doubles, and at the end of his interrogation he did not remember what he had stated in the slip while referring to him, and claimed that he had acted in accordance with the legal advice he had received. To teach you that the claim that this is a payment that was mistakenly paid as travel expenses is not an authentic factual claim, which in any case the defendants have not been able to prove. The following are what the defendant said in his testimony regarding theconvalescence pay component:
"Q: Yes. You claim in your affidavit that the convalescence pay is in fact the travel, section 79,