Labor Dispute (Nazareth) 27940-03-20 Dvir Cohen – Amud Farm Ltd. - part 2

The Honorable Judge: Give it back to me, yes?

A:                  Every 4 months we closed, every 4 months, bring me 10,000 shekels from the amount I put in and that I will make a profit and the farm will make a profit, I will pay it back.  I mean, I'm going to keep the farm standing

Honorable Judge: Sir,

A:                  On your feet,

The Honorable Judge: Sir, are all these things that you tell us backed up by written documents ?

Q:                  Nope.

The Honorable Judge: There is a written document

A:                  No, Omar

The Honorable Judge: Is there or isn't?

A:                  And Guy and I and Dvir were standing there and he said to me, deduct it from me, give it back to me." (Sat. 14-26) at p. 28 of the protégé).

93. In any event, Mr. Guy admitted, both in his affidavit and in his testimony, that he was fed by the defendant. In his testimony, he confirmed that he was not aware of how the parties acted with regard to the addition of NIS 2,500, and that his statements on the matter were not personal knowledge (paras. 35-36, p. 6 of the protégé).  Therefore, it is not possible to establish findings on the basis of Mr. Guy's testimony.  We will add that    Guy's testimony did not leave a credible impression on us, since he stated that when the defendant refused Dvir's request to receive a salary increase, Dvir then asked to return the investment money to him (Q. 26-28, p. 6, S. 7-8, p. 8 of Pro. 05/12/2024).  This means that Mr. Guy changed his version and claimed that Dvir asked for the return of his money and not a loan.  As for Mr. Friedman and his failure to testify, this is a failure that acts to the defendants' obligation, since it was expected that they would summon him to testify in order to verify the defendant's version.
94. It should be noted that contradictions arose in the defendant's version, which, in their accumulation, have implications for the reliability and reliability of his version, aswill be detailed below. First, in the preliminary hearing on June 10, 2021, the defendant did not claim at all that the salary increase constituted a loan, but claimed that it was a return to the investment money to Dvir every month, and in his words: "This money came in cash, I don't know where he got it from, I kept it in the safe and after a certain period of time he said that he had financial problems, we met and he asked for this money back.  Every month I gave him back 2,500 shekels, and after he got everything he ran away.  All of the NIS 96,000 was returned and even more" (paras. 11-14, p. 3 of the prot., and also the testimony of the defendant, paras. 3-13, p. 29 of the protégé).  In their summaries, the defendants claimed that this was a "kind of loan", so that the nature of the addition was not sufficiently clarified from the defendants' versions.
95. Second, in his affidavit, the defendant claimed that "the plaintiff took all of his investment money from the company, for a period of a little longer than the last three years of his employment, when he withdrew NIS 2,500 of these funds every month" (paragraph 23 of his affidavit, and his words in the preliminary hearing of June 10, 2021, S. 1413, p. 3 of the prot.), whereas in his testimony before us he claimed, for the first time, that Dvir was not paid the sum of NIS 2,500 per month, but rather the sum of NIS 10,000 was paid every four months (Q. 16-18, p. 28 of the proclamation), and this is in complete contradiction to the defendant's statements in his affidavit and in the preliminary hearing.
96. More than necessary, we would like to clarify that the claim that the farm provided Dvir with a loan from his investment money is inconsistent with logic and common sense. It is not clear why, then, the farm did not return Dvir his money in full, but rather transferred to him, as alleged, a sum   of NIS 2,500 per month, or, according to its suppressed claim, a  sum of NIS 10,000 every four months, as the defendant testified.  It is also not clear how Dvir's salary decreased during the period of his employment and did not remain unchanged or increased; It is not for nothing that the defendant did not have substantive answers to the perplexities of the plaintiffs' counsel regarding this matter (p. 24 of the protégé).
97. In summary, we have reached the conclusion that the sum of NIS 2,500 paid to Dvir in cash, from January  2016 until the end of his employment, constitutes part of his salary.
98. With regard to the determination of the amount of gross salary as  of January 2016, we decided to accept Dvir's argument that his salary should  be set at NIS 11,500 gross, in the absence of reference or countercalculation on behalf of the defendants.  We would like to clarify that in accordance with the pay slips 12/2011 - 02/2012, Dvir's gross  salary  was NIS 10,000 (NIS 8,500 net) while the mandatory deduction was approximately NIS 1,500, therefore, it seems reasonable that  a salary  of NIS 9,500 net would be equal to  a gross sum of NIS 11,500.
99. Noam's salary: According to Noam, his salary was NIS 5,468 during the first period of employment; and NIS 6,500 net during the second employment period, which is equal to the gross sum of NIS 6,900 (paragraphs 4-5, 33 of the statement of claim, paragraph 3 of his affidavit). According to the defendants, Noam's salary during the second period of his employment was NIS 6,000 net including travel (section 10), as reported in the pay slips.  The defendants further claimed that the living expenses incurred by the farm were part of the terms  of Noam's salary  (paragraph 66 of the statement of defense), without quantifying or determining the amount claimed.  In his affidavit, the defendant claimed that Noam's salary ranged from NIS 5,780-6,500 gross  in the "second course" (section 74).
100. As for our decision, after examining the arguments of the parties and all the material in the file, we reached the conclusion that Noam's pay slips reflected the salary that was actually agreed upon and paid to him, which was NIS 6,000 net during the second period of employment, a total of approximately NIS 6,500 gross, as appears from the pay slips. We are aware that in the absence of notice of the terms of the transaction,  the burden of proving the amount of wages paid is on the defendants, but we are satisfied that the defendants met this burden.
101. First, Noam's claim that he received a net sum of NIS 6,500 is inconsistent with the payment of NIS 12,000 on April 19, 2019 for the salary for the months 1,2019 and the payment of NIS 6,000 on May 23, 2019 for the salary for the month of 03/2019 (see bank transfers attached as Appendix F to Noam's affidavit), taking into account that Noam confirmed to us that he did not receive cash payments beyond those recorded in the pay slips (Q. 19-23,   47 of the protégé).  Second, an examination of Noam's calculation of the claimed pension component shows that Noam adopted the gross salary reported in the slip; And we conclude from this that he does not deny that his salary is in accordance with the immigrant from the pay slips.  Third, Noam set his determining salary during  the first period of employment in accordance with pay slips; He did not explain why his fixed salary in the pay slips during the second period of employment should be deviated.
102. For the avoidance of doubt, we should note that he did not lose sight of the claims of the defendants that they first raised in their affidavit that the travel component that was reported in Noam's pay slips was paid for convalescence and was inadvertently reported as travel. Indeed, we were under the impression that the travel component reported in the NIS 500 pay slips was a fictitious payment, since until 2019 Noam lived on the farm and therefore did not need to travel; however, as will be detailed below, we were not convinced that this was a convalescence pay, and therefore it was an integral part of Noam's salary.
103. In general, we have reached the conclusion that Noam's salary is as it appears from the pay slips, both during the first employment period and during the second employment period.

The circumstances of the plaintiffs' termination of  employment and the question of entitlement to the exchange of advance notice and severance pay

104. There is no dispute that the plaintiffs resigned at the same time and under the same circumstances, with the defendants having almost the same claims in relation to the circumstances of termination of employment. The parties disagree regarding the circumstances of termination of employment, and as a result, the question of entitlement to advance notice and severance pay.
105. According to the plaintiffs, in October 2019, they resigned from the law, after the farm began withholding their wages and the wages of the other workers, stopped paying suppliers, stopped depositing into the pension fund and did not pay them cogent rights to which they are entitled  by virtue of the expansion orders in the agricultural sector (Dvir:  paragraphs 10-15 and 33-42 of his affidavit, paragraphs 49-66 of his summaries, Noam: paragraphs 12-19, 33-42 of his affidavit, paragraphs 44-61 of his summaries).  On the other hand, according to the defendants,  Dvir informed the defendant that he was resigning on the grounds that the work was not suitable for him, and that  it turned  out in retrospect that this was a premeditated act, the purpose of which was to evade Dvir's participation in the farm's losses, as required by the partnership agreement that was entered into between the parties,  the nature of which the parties disagree and concluded, which we will refer to later (see paragraphs 40-45 of the defendant's affidavit).  Therefore, the defendant petitioned in affidavitf, for the first time, to deny him compensation for the dismissal of an exterminator, including those deposited in the compensation fund in light of acts of theft, causing damages and breach of the duty of trust (paragraphs 46-62 of the affidavit).  As for Noam, according to the  defendants, he abandoned his job after it was discovered to the defendant that Noam  was absent from work in the months of 01-05/2019, without his knowledge and consent, and even received full wages for them (paragraphs 44-46 of the defendant's affidavit).  The defendants denied that Noam had legally resigned from a dismissal and petitioned, for the first time and in Dvir's case, to deny severance pay, including the sums deposited in the fund, in  light of heavy disciplinary offenses and damages discovered during the period of Noam's employment (paragraphs 35-53 of the defendant's affidavit).
106. The legal framework – Section 11(a) of the Severance Pay Law, 5723-1963 (hereinafter – the Severance Pay Law) states: "If an employee resigns due to a tangible deterioration in working conditions, or due to other circumstances in an employment relationship with respect to that employee in which he should not be required to continue his work, the resignation for the purposes of this Law is regarded as dismissal." 
107. The case law states that an employee who wishes to consider his resignation as dismissal, as stated in section 11(a) of the Severance Pay Law, must have the burden of proving the existence of a "tangible deterioration in working conditions" or that "other circumstances... in which he should not be required to continue his work", as well as to prove that he resigned for this reason and not for any other reason, while giving reasonable notice to the employer of his intention to resign, which provides a reasonable opportunity for the employer to correct the same evil/circumstances.  In addition, it was ruled that failure to provide such notice will not negate the entitlement to severance pay, when it is clear that the employer is unable or unwilling to act to correct the aforesaid [see Labor Appeal (National) 60018-12-14 Yordao Asmara - Sha'an Holdings Ltd., dated September 29, 2016, hereinafter – the Asmara case].
108. As to the question of what are those "other circumstances", which are relevant to the plaintiffs' case, it was held: "... This term is interpreted to refer to "circumstances related to the employer or other factors related to the workplace." In this context, President Adler ruled, in the case of Ami Matom Kahai Lishna: "The idea embodied in the provisions of section 11(a) is to allow the employee to leave his place of work, without being harmed, when something happens in the workplace that objectively justifies his departure... When the employee decides to leave 'due to other circumstances in the employment relationship...' The end of section 11(a) does not include a provision regarding the nature of those circumstances, i.e., whether they must also be tangible or significant.  Therefore, the court is required to fill in the gaps, and for this purpose, we must turn to the basic principles of our legal system in general and of labor law, in particular." [Emphasis added - A.A.] The matter is examined according to an objective criterion, "although this necessarily translates to the employee's subjective feeling" [Labor Appeal (National) 29196-11-17 Ina Doctor - Kleinor Services for Israel Ltd., dated March 25, 2019].
109. In addition, in the Asmara case above, it was held that "an employee was employed during the entire period of his employment in violation of cogent rights, and even consented to it. In such circumstances, an employee should not be required to continue his work, even if this does not entail a 'tangible deterioration' in the conditions of his employment, and they should be seen as meeting the requirements of the section."
110. It was further ruled that: "If, during the period of employment, the employee was not paid his rights by virtue of the law, collective agreements or extension orders, and the employee did not raise a claim in this regard, whether due to lack of knowledge of his rights or for any other reason, such as the fear of losing his job, the employee is not obligated to continue to accept this conduct of the employer, and he has the right to resign in accordance with section 11 of the Severance Pay Law. Even if there was no change or deterioration near the date of his resignation from work.  The employer's conduct, the failure to respect the employee's rights, constitutes "other circumstances in the employment relationship with respect to that employee in which he should not be required to continue his work."  Therefore, if the employee resigns due to a failure to respect his rights, and the employer has been warned (or the exception to the employer's warning applies), the employee will be entitled to severance pay under section 11(a) of the Severance Pay Law" [Labor Appeal (National) 26706-05-11 Haim Shabtai - Technobar Ltd., dated June 10, 2013].
111. Regarding the provision of a warning and the existence of the exception for not giving a warning, it was ruled: "The more severe the violation of the employee's rights, and the longer it is spread over a longer period, the greater the presumption in the law that he should not be required to continue to be employed under the same conditions. This assumption, which is inherent in the provision of the law, has implications for the level of proof required of the employee to prove the conditions of entitlement to severance pay under the provisions of the section.  Therefore, the more severe the injury to the employee, and spread over a long period of time, the lower the level of proof the employee will probably be required.  Hence also the exception as set out for the third condition of entitlement under the provision of section 11 of the Law, according to which "failure to give notice will not negate the right to pay severance pay when it is clear that the employer cannot or does not intend to act to correct the tangible deterioration or circumstances, or in cases where the employee's working conditions are substantially inferior to the working conditions according to the provisions of the law" (see above in the Technobar case).  My emphasis, R.R.).  Thus, in the Dori case, it was clarified that: "The rule is that the employee is obligated to give the employer a warning of his intention to resign due to deteriorating working conditions, but before us there is an exception to the rule... In a case where the chances of a tangible deterioration in working conditions being canceled are minimal, the employee is not obligated to warn the employer of his intention to resign.  ...  Moreover, their resignation should be viewed as 'dismissal,' because it resulted from the non-payment of their wages for a long period of time" (Parashat Dori, ibid., emphasis mine R.R.) (The matter of Asmara above).
112. Hearing and Decision – In light of the case law, and after examining the testimonies, the arguments of the parties and all the material in the case, we have reached the conclusion that the plaintiffs have been able to prove that they have legally resigned from dismissals, and therefore they are entitled to severance pay. Let us explain.
113. The first condition – circumstances that the employee should not be required to continue his work: As for the non-payment of cogent rights – it has been proven that the plaintiffs were not paid rights by virtue of the expansion orders in the agricultural sector, which, as stated above, the parties do not dispute its application to the employment relationship between them, fromthe beginning of their employment to its termination, and there is no dispute that since 2016 the defendant has stopped depositing funds into the pension and compensation funds, and  this is sufficient to determine that the first condition is met.  and that these are circumstances in which the plaintiffs should not be required to continue their work.
114. We clarify that the defendants' claim that the wages paid to the plaintiffs are higher than the tariff wages, and include the rights to which they are entitled by virtue of the extension orders (paragraphs 52, 66 and 81 of the statement of defense in the Dvir suit, paragraphs 56, 67 and 79 of the statement of defense in the Noam suit), is rejected, as will be detailed below. Moreover, we did not attribute weight to the fact that the pay slips or some of them were available to the plaintiffs during the period of their employment, since there is no bearing on the knowledge or consent of the plaintiffs, as explained in the precedent cited above.
115. As to the claim regarding the failure to deposit funds into the pension and compensation fund as required, there is no dispute that the defendant opened funds for the plaintiffs, to which pension  benefits and compensation were deposited.  An examination of the reports of Clal Pension and Provident Fund shows that Dvir was deposited with funds up to and including the month of 01/2015 (Appendix B to Dvir's affidavit), while Noam was deposited with funds during the period of his first employment until 03/2014 (Appendix B to Noam's affidavit).  There is no dispute that the farm stopped depositing funds into Dvir's provident fund from 02/2015 until the end of his employment, whereas Noam was not deposited at all during the period of his second employment (see also in Dvir's claim: paragraphs 64 and 73 of the statement of defense, paragraphs 78-86 of the defendant's affidavit).  In Noam's lawsuit: paragraphs 65 and 73 of the statement of defense, paragraphs 67-73 of the defendant's affidavit).  The defendants' explanations regarding the failure to deposit funds into the fund did not satisfy us, as will be detailed below.
116. First of all, we prefer the plaintiffs' version of the failure to deposit funds into the pension fund over the defendants' version.  The plaintiffs categorically denied the defendants' claims that the plaintiffs were the ones who sought to stop the deposits, and their version was not challenged.  The plaintiffs' version that they contacted the defendant in order to clarify why the farm had stopped depositing funds into the pension fund was not contradicted and supported by correspondence between Dvir and the defendant (paragraphs 21-25 of Dvir's affidavit, Appendices 3 and 4 of Dvir's affidavit, paragraphs  24-26 of Noam's affidavit).
117. We accept Dvir's testimony with regard to the request to replace the agent as a difference from the termination of the deposits, as claimed by the defendants, in which he stated:

"Q:     Please tell me why you asked to switch to another pension agent?