Labor Dispute (Nazareth) 27940-03-20 Dvir Cohen – Amud Farm Ltd. - part 7

At this time we are...

The Honorable Judge:       Did you give him this period?

A:       We gave him this period and more than that, we...

The Honorable Judge:       So why are you demanding advance notice?

A:       We...  That's what we read, that's what we understood.  Now I want to explain about the abandonment, we on these 45 days we informed Lior that we were having a farewell party on the farm.

The Honorable Judge:       So you actually announced your departure 45 days before?

A:       We have announced our departure, yes" (S. 27-37, p. 33 of Prut).

144. In general, and as stated, the plaintiffs' claim for the passage of advance notice is denied.
145. Severance pay - Dvir: In his statement of claim, Dvir put his claim for full severance pay  in the amount of NIS 96,000 (sections 37 and 69.4), while in his affidavit it was claimed that he was entitled to NIS 92,000 for severance pay, and therefore, after deducting the sum of NIS 9,216 deposited into the severance fund, and the sum of NIS 26,746 that was paid after the filing of the statement of defense, he filed his claim  in the amount of- NIS 56,038 (paragraphs 38-42 of the affidavit, paragraph 66 of its summaries).  Dvir supported his calculations with a calculation that he made and attached as Appendix E to his affidavit.
146. In the statement of defense, the defendants Dvir is not entitled to severance pay since he abandoned his job (paragraphs 77-80), and in their affidavit they petitioned, as stated, to deny the severance pay, including those deposited in the fund. The defendants further claimed that  the  sum  of NIS 42,471 was deposited in the compensation fund in respect of severance pay (NIS 15,725 deposited in Clal and the sum and NIS 26,746 deposited in Menorah Company).  Moreover, according to the defendants' claim,  according to Dvir's calculation, he is entitled to the sum of NIS 38,248, so that the farm deposited NIS 4,223 for him in excess (paragraphs 62-63).   The defendant's affidavit was attached to a report by Clal (Appendix 11).
147. Discussion and Decision - After examining the arguments of the parties and all the material in the case, including the parties' calculations, Clal reports and the amounts paid after the filing of the statement of defense, we have reached the conclusion that Dvir is entitled to the sum of NIS 55,079 for severance pay.  Let us elaborate.
148. Considering Dvir's last fixed salary of NIS 11,500 gross, and the period of his employment – 95 months, Dvir is entitled to a total of NIS 91,041 for severance pay. Since the parties do not disagree regarding the funds that were allocated to Clal's coffers during the employment period, and the sums paid after the filing of the claim (NIS 9,216 + NIS 26,746), Dvir is entitled to the sum of NIS 55,079 for the completion of severance pay.
149. Severance pay - Noam: In his statement of claim, Noam placed his claim for full severance pay  in  the amount of NIS 26,450,  or alternatively in the amount of NIS 19,044 in accordance with the pension extension order (sections 33-34, section 59.3).  In his affidavit,  Noam placed his claim in respect of this component in the amount of NIS 14,623, after deducting the  sum of NIS 11,827 that was paid after the filing of the statement of defense (paragraph 41 of his affidavit, paragraph 61 of his summaries).  Noam  supported his affidavit with a calculation that he prepared and attached as Appendix G, in accordance with a determining salary of NIS 6,900.
150. According to the defendants in their statement of defense, Noam is not entitled to severance pay since he abandoned his job (paragraphs 76-78). In their affidavit,  the defendants petitioned to deny the severance pay, including those deposited in the fund (paragraphs 46-47).  It should be noted that the defendants claimed that they transferred the sum of NIS 36,231 to the Menora Mivtachim fund in a tax appeal after the defense was filed, of which a sum of NIS 24,469 was transferred in respect of pension benefits (part employee and part employer) (paragraph 69 of the defendant's affidavit).
151. Discussion and Decision - After examining the arguments of the parties and all the material in the file, including the calculation that was attached to Noam's affidavit, Clal's reports and the monies paid after the filing of the statement of defense, we have reached the conclusion that Noam is entitled to the sum of NIS 12,726 for severance pay and we will elaborate.
152. Taking into account Noam's last fixed salary of NIS 6,405 gross, and the second employment period of 46 months, Noam is entitled to NIS 24,553 in respect of severance pay, of which NIS 11,827 was deposited into the Menora Mivtachim fund after the filing of the statement of defense, and therefore Noam is entitled to severance pay in the sum of NIS 12,726.

Overtime

153. Dvir's claim: Dvir claimed that during the period of his employment, he was employed on all days of the week, on an average of two Saturdays a month and on holidays (paragraph 65 of the affidavit, Appendices 15-17 to his affidavit).  Dvir also claimed that he was employed 13 hours a day; From 06:00 to 17:00, of which there was a half-hour break, and from 18:00 to 20:00 in the evening, during which he toured and inspected the farm's facilities (paragraph 62 of the affidavit).  In addition to this format, Dvir claimed that he  worked 2-3 days a week, as a night guard from 10:00 p.m. to 6:00 a.m., when he worked 18 hours a day (paragraph 64 of the affidavit), and that his working hours were under the knowledge and supervision of the defendant, who was in daily contact with Dvir (paragraph 63 of the affidavit, Appendix 14 to the affidavit).
154. Therefore, Dvir petitioned to oblige the defendants to pay the sum of NIS 394,901.3 for overtime pay, for 60 hours of overtime per month (50 hours according to 125%, 10 hours according to 150%, paragraph  61 of the statement of claim, paragraph 65 of the affidavit, paragraph 121 of the summaries).  As evidence to prove his claim, Dvir attached correspondence between him and the defendant that testify, according to him, to his working hours, including guarding at night (Appendices 14-15 to the affidavit).  In his summary,  Dvir reiterated what was stated in his affidavit and claimed that his version regarding the format of his employment was not contradicted, since he was not questioned about it, and that his version was supported by the testimony of the witnesses on his behalf and the evidence he submitted, including correspondence between him and the defendant attesting to work at night and early in the morning, as well as  on Saturdays.  According to Dvir, the defendant did not meet the registration obligations imposed on it as an employer, in accordance with section 25 of the Hours of Work and Rest Law and section 24 of the Wage Protection Law, 5718-1958 (hereinafter –  the Wage Protection Law) and in accordance with the case law (sections 110-115 of the summaries).  Dvir further claimed that it was not proven that he served in a position of trust (paragraphs 117-118), and that  it was proven that his working hours could have been supervised, while it was proven that the defendant actually supervised them  (paragraphs 112-115).
155. Noam's claim: Noam claimed that during the periods of his employment, he was employed all days of the week, including Saturdays and except for one Saturday a month, in addition to working on holidays (section 47 of his claim). Noam further claimed that he was employed from 6:00 a.m. to 7:00 p.m. in the summer months, and until 5:00 p.m. during the winter months, during which he spent 45 minutes during a break (paragraph 46 of his claim, paragraph  55 of his affidavit).  On the Friday before that Saturday when he did not work, Noam claimed that  he worked from 06:00 to 12:00 (paragraph 47 of his claim).  In addition to his work during the day, it was  alleged that he was employed three days a week as a guard from 10:00 p.m. to 6:00 a.m. (paragraph 46 of his claim, paragraph  55 of his affidavit), and  that he worked 300 hours a month (paragraph 50 of his claim, paragraph  58 of his affidavit).
156. Therefore, he petitioned to oblige the defendants to pay the sum of NIS 129,037.5 for overtime pay, for 60 overtime hours per month (50 hours according to 125, 10 hours according to 150%) (paragraph 51 of the claim, paragraph 59 of the affidavit).  Noam also petitioned to charge the defendants the sum of NIS 60,000 for remuneration for working hours on Saturdays and holidays (paragraph 52 of the claim, paragraph 59 of the affidavit).  Noam repeated the same arguments as those raised  by Dvir regarding the burden of proof, and added that the salary he received, in the amount of NIS 6,000 per month, is not the salary of an employee at the managerial level, and therefore the defendants'  arguments to exclude the application of the Hours of Work and Rest Law to his employment should not be accepted (section 107 of the summaries).
157. The defendants raised the same arguments that they raised in this matter in Dvir's lawsuit in their statement of defense, affidavit and summaries.
158. The normative framework – Section 30(a) of the Hours of Work and Rest Law excludes from its application types of employees, including: "employees in managerial positions or in positions that require a special degree of personal trust" [section 30(a)(5) of the Law] and "employees whose working conditions and circumstances do not allow the employer any supervision of their working and rest hours" [section 30(a)(6) of the Law]. Below we will examine whether or not the two exceptions listed in  the aforementioned sections of the law are fulfilled in the case of the plaintiffs, as the defendants claim.
159. In accordance with the case law, the starting point is that the exclusion of workers from the application of the Hours of Work and Rest Law should be interpreted in a restrictive manner, so that fewer workers will be excluded from the application of the law and more workers will benefit from its protections [see  National Labor Court Hearing 300271/98 TEPCO – Manufacturing of Energy Control Systems in a Tax Appeal – Menachem Tal, dated October 29, 2000, and Labor Appeal 61148-08-16S.  Vehicle Operating Centers in a Tax Appeal - Gabriel Attias, dated 05/06/2018, hereinafter – the Attias case].  It was further ruled that the burden of proving the applicability  of any of the exceptions to  section 30(a) of the Law is on the person claiming its existence.
160. A position of trust – section 30(a)(5) of the Hours of Work and Rest Law – in accordance with the case law: "The main indicators for examining a special degree of personal trust are the following: a senior employee, with special information, with special responsibilities who receives a high salary that corresponds to the special personal trust to which he is receiving. These and similar characteristics are related to the employee's working hours and wages... When these will also be examined according to the special circumstances of the specific case [Labor Appeal (National) 570/06 Amos Agron - Adv. Ziva Katz , dated 14/10/2007, and also Criminal Appeal (National) 16/08 State of Israel - Ministry of Detention until the end of the proceedings in Best Buy Marketing Chains Ltd., dated 04/01/09, and the Attias case above].
161. It was further held in the Attias case that "in a small workplace where the managerial pyramid with its height and depth is not present, the examination of the role of management must be done while examining the overall picture, and drawing the necessary conclusions in the light of the tests set out in the case law, while looking for circumstances that can tip the scales while preserving the nature of section  30(a)(5) as an exception whose interpretation is limited.  Similarly, it is not necessary for any small workplace to have a manager within the meaning of  section 30(a)(5) of the Law, just as this should not be ruled out in a sweeping manner.  Each case will be examined according to its circumstances, and in view of the absence of the touchstone of the organizational pyramid, the need arises to identify other special circumstances that clearly indicate the existence of the exception."
162. As for Dvir – the defendants repeated as a mantra the claim that Dvir was employed in a position of trust by virtue of his position as manager of the farm, but beyond this claim there is no detail or reference to the indicators that according to the defendants attest to Dvir's employment in a position of trust, in particular with regard to the terms of his employment and his special responsibility.  The claim that Dvir was responsible for the farm worth millions does not,  in itself, evidence that he served in a position of trust (paragraph 18 of the defendants' affidavit).  The defendants  did not even claim, even implicitly, that Dvir was exposed to the farm's secrets or that she was the defendant's confidant.  On the other hand, Dvir does not deny that he is in charge of all the activities on the farm (paragraph 3 of his affidavit), but according to his claim that a position of trust is not a "magic word" that cancels his right to overtime  compensation (paragraph 117 of the summaries).
163. As to our decision, it was proven that Dvir was the one who managed the farm professionally and gave instructions to the workers (see paragraph 3 of Dvir's affidavit, testimony of Mr. Friedlander at paras. 21-23, pp. 4 of Prot.) and he was the one who was in charge of the farm and was in charge of it professionally. Notwithstanding the aforesaid, "the fact that a manager has a great deal of responsibility or that he is given extensive powers is not sufficient to indicate that his role is a 'managerial role.'  An employee's role is a 'management role' only if he is involved in outlining the company's management policy while exercising independent discretion that is not dictated by this policy" [Attias Case, and also Labor Appeal (National) 23645-04-19 62 Anonymous - Zip Code, Security, Services and Manpower Ltd., dated June 22, 2020 (hereinafter – the Anonymous case)].
164. Moreover, Dvir's version that the defendant was the one who managed the farm financially, he was the one who set the prices and the wages, negotiated and received money, issued invoices and had exclusive access to the farm's bank account and the funds, whereas Dvir's role was limited to issuing delivery notes (paragraph 84 of Dvir's affidavit) was not contradicted, and was even strengthened by the defendant's testimony before us who confirmed that he was involved and involved in all the affairs of the farm.  Even if according to him, "by remote control" (testimony of the defendant, s. 26, p. 49 of the protégé).  It was proven that the defendant was the one who sold the cattle, set the prices, made the purchases and paid for the veterinary service and the garages (the defendant's testimony: Q. 4-6, p. 49 of the prot.), and he was the one who determined the terms of employment of the workers, was in charge of issuing pay slips and transferring the wages (Dvir's testimony: paras. 21-27, p. 29 of the prot.), facts that contradict the claim that Dvir actually managed the farm's assets (paragraph 18(a) of the defendant's affidavit).
165. We have not lost sight of the testimonies of the plaintiffs' witnesses according to which the terms of their wages were agreed upon with Dvir (Q. 40 of the defendants' summaries, testimony of Mr. Friedlander: S. 35, p. 4 of Prut, testimony of Mr. Emery: S. 34-36, p. 7 of Prut) and which supposedly contradicts the version of the Dvir, however, we accept Dvir's explanations, according to which conducting the interview and presenting the working conditions set by the defendant to the employees constitute a preliminary stage, after which the employees meet with the defendant himself (paras. 21 ff., p. 29,  1-4, p. 30 of the protégé).
166. We were also under the impression that despite his professional role in the farm and the management of the workers, including the work diaries, Dvir had no independent judgment and did not act on his own (paragraph 8 of the defendants' summaries).  Dvir was required to be in contact with the defendant by telephone throughout the day and throughout the week, and to update him and receive his response and approval, so for example, the defendant instructed Dvir to "tomorrow the closed account will pass through him, it seems to me that this will be the last time we will work with him, but he will pay in advance" (Appendix 17 to Dvir's affidavit, at p. 182 ibid., spelling errors in original).  In another statement, the defendant writes to Dvir, "Next year 70% weaning will be 350 calves" (Appendix 17 to Dvir's affidavit, p. 182).  The regular  reports that the defendant received from a real time point of time undermine his claim that this was a coaching job.
167. In addition, Dvir does not enjoy a high salary or special and high accompanying conditions. On the contrary, Dvir was not paid cogent rights and protective rights throughout the years of his employment, and he was employed, according to him, in an unusual format of hours, throughout the weekdays and also on holidays, and in return he received a total of NIS 9,500 net [Labor Appeal (National) 188/06 Sami Bojo - Cal Construction Ltd., dated November 28, 2010, hereinafter – the Bojo case].
168. As for Noam – apart from a vague claim that Noam served "in a position of trust that is also a flexible position" (paragraph 54 of the defendant's affidavit), the defendants have no explanation as to why Noam's position is a position of trust, which excludes his employment from the application of  the Hours of Work and Rest Law.  Noam's version that he did not determine his working hours but rather planned the order of work is acceptable to us (paras. 27-29, p. 39 of the protégé).  According to the defendants' version, Noam also served,  at most, an assistant to Dvir, and was in charge of caring for the animals, cleaning, maintaining and maintaining the farm with its facilities and equipment (paragraph 19 of the defendant's affidavit, Noam's testimony at p. 39 of the protégé).
169. In addition, the defendants' argument that the definition of Noam's position as a position of trust was defined in his employment agreement was not proven (paragraph 21 of the defendant's affidavit,  the defendant's testimony: paras. 10-14, p. 7 of the protégé).  The employment agreement was not presented by the defendants, and not even the first evidence of its existence was presented, and Noam's version that the  employment agreement was not presented to him was not refuted.  More than necessary, it should be noted that Noam also does not enjoy a high salary or  special accompanying salary conditions, since he  accepts a total of NIS 6,000 net.
170. In summary, the defendants' claim that the plaintiffs were employed in coaching positions, as stated in section 30(a)(5) of the Hours of Work and Rest Law, is rejected.
171. Lack of Ability to Supervise – Section 30(a)(6) of the Hours of Work and Rest Law – As stated, the defendants argued that the nature of the plaintiffs' work, as those who were in charge of caring for and supervising the animals, lived together with their families on the farm, and in light of the flexibility of the working hours, the defendants were unable to supervise  the plaintiffs' working hours, which were not requiredReport them.  This is in addition   to the fact that it  is not possible to separate the  plaintiffs' working hours  from the  hours they spent inthe private space (paragraph 67 of the defendant's affidavit  in Dvir's lawsuit, paragraph 58 of his affidavit in Noam's lawsuit, paragraph 10 of the defendants' summaries).  On the other hand, the plaintiffs argued that there was no basis for the defendants' claim that there was no supervision since their work was carried out in a permanent area, and added that it was clear that their work could be supervised, and as evidence, the defendant was in daily contact with the plaintiffs (paragraphs 111-112 of Dvir's summaries, paragraphs 10-102 of Noam's summaries).
172. The normative framework – according to case law, this exception will apply only in those exceptional cases in which  the employer has no possibility of supervising the framework of working hours, when it was ruled that "the burden of persuading that it is impossible, in a manner that justifies excluding the employee from the application of the law, will be increased in exceptional and limited cases.  This is in view of the existence of managerial tools and the sophistication of technological means (provided that their violation of the employee's privacy does not exceed what is required)" [Labor Appeal (National) 27280-06-16 Nissim Lankri - Innopro - Innovative Technological Solutions Ltd., dated October 31, 2017].

In the case of Anonymous above, it was held that "an analysis of the section raises two possible interpretive models: first, the inability to supervise the framework of working hours due to changing and frequent needs.  The second is the inability to supervise the degree of work within the scope of work hours that can be defined."