"We also did not find any substance in Mr. Iluz's argument that according to section 9 of the Severance Pay Law, since the offer to continue the employment was not directed to him three months after the termination of the employment agreement for the years 1995-1996, these are dismissals that entitle him to severance pay. Mishmar Iluz accepted the offer to continue his work in the ranks of Hapoel Be'er Sheva as an assistant coach, it cannot be said that he was fired.
It is possible that in the event that the employer offers the employee to continue his work only a few days before the termination of his employment in a fixed-term agreement, and the employee refuses the offer because he has already committed to work at another workplace, the court will find the employee entitled to severance pay, in the circumstances of the case. But this is not the case before us, in which Mr. Iluz was offered to continue working and he chose to do so. In these circumstances, we are not dealing with dismissal, and this was even ruled in the past: "A fixed-term employment contract does indeed expire at the end of the agreed period, however, when a new agreement was made... The existence of the employee-employer relationship is seen as a single entity for both periods. Thus, for example, there is no entitlement to severance pay, by virtue of section 9 of the Severance Pay Law, 5723-1963, for the period that has ended, and on the other hand, when the new contract comes to its conclusion in circumstances that entitle to severance pay – the entitlement is for both periods." (Emphasis added - A.A.)
The aforesaid determination embodies the question of the causal connection to the non-renewal of the contract. In our case, according to the Regional Court's ruling, in which we did not intervene, the offer to renew the contract under the same terms was not delivered on the date set for this purpose in section 9(b) of the Severance Pay Law, but much later (June 2022 or at the latest at the end of the season in May 2022), just as happened in previous years. However, Amos did not argue in real time against the timing of the offer, which, as stated, was consistent with the manner in which the parties had acted on previous occasions, nor did he claim that he did not accept the offer due to a change in circumstances that had occurred since he did not receive the offer to renew the agreement on time (for example, and without exhausting himself, that he had already signed an agreement with another group). His refusal to accept the offer was rooted in his (legitimate) desire to upgrade his salary. In these circumstances, and especially given the manner in which the parties have acted over the years, it is possible to reach the conclusion that Amos retroactively agreed to an "extension of the deadline" for receiving the offer under section 9 of the Law. Therefore, the non-renewal of the contract stems from Amos' personal and legitimate position, but in the circumstances of the case he cannot understand the provisions of section 9(b) of the Severance Pay Law.
- In light of the above, Maccabi Netanya's appeal against its obligation to pay Amos the severance pay is accepted and its obligation in the regional judgment to pay him severance pay is canceled. This does not detract from Maccabi Netanya's obligation to release the deposits to the pension fund in favor of Amos, to the extent that they have not been released so far.
- 3.II. The Zubas Matter
- In the regional court, Bnei Yehuda made two arguments: one, relating to the very applicability of the law in the case of Zubas; The second relates to the fact that Zubas was offered a contract to extend his employment with the team, and he refused the offer.
- We are unable to accept Bnei Yehuda's first argument that section 9(a) of the Severance Pay Law itself does not apply to soccer players, as distinct from the argument relating to the timing of the proposal to renew the agreement (section 9(b)). When a player is employed on a fixed-term contract, there is no reason not to apply Section 9 of the Severance Pay Law. As stated in case law, section 9 of the Severance Pay Law "is intended to prevent evasion of the obligation to pay severance pay by requiring contracts for fixed periods."[38] This is also true for soccer players. While there is no reason not to apply the right to severance pay to them, there is no reason to allow in their case to "bypass" the obligation in the form of fixed-term contracts.
- The second argument was rejected by the Regional Court, where it was determined that Bnei Yehuda did not meet the burden of proving that Zubas was indeed offered a renewal of the contract. In the summaries of Bnei Yehuda in this court, she discussed only her legal arguments in relation to the question of the applicability of the law in the football industry in general and in Zubas's case in particular. This, prima facie, is sufficient to dismiss the appeal against the factual determination of the Regional Court. In any case, as is well known, the appellate court does not tend to intervene in the factual determinations of the trial court, except in exceptional circumstances that do not exist in our case, and therefore we accept the regional court's ruling.
- In light of all of the above, the Bnei Yehuda appeal on the question of Zubas's entitlement to severance pay is dismissed. The amount of severance pay is required later.
- Additional components of Maccabi Netanya's appeal
- 1. Hearing
- Indeed, when an employee is employed on renewable contracts for a fixed period, the employer is obligated to specify the reasons underlying his intention not to extend the engagement[39]. At the same time, not every case in which the duty to a hearing was violated is justified in awarding compensation for its violation[40]. In his case, given that in practice, after the date of the hearing (before the end of February 2022), the parties negotiated the continuation of Amos' employment at Maccabi Netanya, but these negotiations were unsuccessful – initially due to Amos' refusal to continue playing under the same conditions and later due to Maccabi Netanya's withdrawal from the offer, after Amos agreed to it – the defect of the lack of a hearing in the period preceding the three months before the end of the season. Moreover, we recall that in the circumstances of the case, we have reached the conclusion that Amos should not be regarded as having been fired. In any case, not every case in which the duty to be heard has been violated justifies awarding compensation. This case falls within the scope of those exceptional cases in which it is not justified to award compensation.
- In light of the aforesaid, Maccabi Netanya's appeal in relation to this component is accepted and its obligation to pay compensation to Amos for breach of the duty to hear is canceled.
- 2. Expenses
- As a rule, the appellate court does not usually intervene in the award of expenses by the trial court, however, given that the decisive majority of Maccabi Netanya's charges according to the judgment of the Regional Court were canceled in the appeal, so that the result is that his claim was accepted only in a small part, we found it appropriate to cancel its obligation to pay Amos expenses as determined in the judgment of the Regional Court.
- Additional components of the Zubas and Bnei Yehuda appeals
- 1. "Determining salary"
- As stated, the Regional Court ruled that the points bonus and the economy fees are authentic salary increments. With regard to the points bonus, it was determined that the bonus is conditional and that entitlement to it is not derived from Zubas' regular work. With regard to the economic fees, Zubas's argument that due to the fact that Bnei Yehuda provided him with housing, a car and its maintenance, this addition is artificial.
- In his appeal, Zubas argues that these two components of salary should be included in the determining salary for the purpose of calculating the following components: weekly rest pay, holiday pay, pension deposits, and severance pay. It should be noted that there is no uniform definition of "determining fee" and each "determining fee" must be examined in accordance with the definitions relevant to the right in question. In this case, we will examine whether there is justification for intervening in the regional court's rulings regarding the nature of the wage components in dispute.
- Regarding the points bonus, Zubas claimed that it was a bonus that was artificially split from his salary, when in practice there could be no possibility that this bonus would not be paid in full. The points bonus is calculated so that Zubas will be entitled to a sum of 1,000 NIS for each point accumulated by Bnei Yehuda up to a maximum of 44 points in a season, i.e. a bonus of up to 44,000 NIS per season. Although the agreement in which the bonus was determined was not presented, it should be noted that the conditions for the payment of the bonus were described by Zubas and Bnei Yehuda did not dispute its description. Zubas claimed that there is no possibility for a team to accumulate less than 44 points in a season and that accumulating points is part of a player's normal job.
- In the Bittman case, [41] it was held that in order for the payment of a bonus to be seen as a "real" bonus that should not be taken into account in the determining salary (ibid., regarding the Civil Service (Pensions) Law [Consolidated Version], 5730-1970, but the same applies to severance pay), it is necessary to examine whether the increment is paid for the employee's regular work or for the "additional effort" required of him[42]. It should be noted that in the Yosef[43] case, it was held that the appellate court is not inclined to intervene in the factual determination as to the nature of the wage component.
- Zubas's claim that the bonus would have been worthwhile for him in any case was made in vain and no evidence was presented to support it. We did not find that there is any basis for the claim that the points bonus was necessarily paid in full each year or that it is not possible for a team to accumulate a number of points less than the maximum amount of points bonus (44 points). The Regional Court ruled that the bonus was paid against the accumulation of points. Accordingly, the bonus was paid each month in varying amounts according to the number of points accumulated by Bnei Yehuda in the relevant month. Since the burden of proving that this is an artificial component rests on the shoulders of the person claiming it, and since Zubas did not meet this burden[44], the appeal in this matter should be dismissed.
- Regarding the economic allowances, Zubas argued that since Bnei Yehuda actually paid him for housing, a car, etc., the payment of economic allowances in addition is not authentic and its purpose is to artificially split the salary for the purposes of evading the payment of his social rights and for tax purposes. Here, too, we accept the Regional Court's determination that the burden of proof to show that this was an artificial split was on Zubas' shoulders and it did not meet this burden. In the judgment, the court ruled that the component set out in the agreement is for "board and economy", i.e., it is a payment for living expenses in its entirety and not necessarily a payment for housing or car expenses, and therefore it has not been proven that there is a duplication of payments in a way that leads to the conclusion that this is not an authentic reimbursement of expenses, but rather an artificial component of the salary. We found no reason to intervene in the Regional Court's determination, which is based on its impression of the testimonies before it.
- Therefore, Zubas's appeal in connection with the substance of the aforementioned wage components should be rejected.
- 2. Pension Deposits
- As stated, the Regional Court, in paragraph 103 of its judgment, rejected Zubas's argument that he is entitled to pension contributions according to his actual salary and not according to his salary up to the average wage in the economy.
In Zubas's employment contract, it was agreed that Bnei Yehuda would provide him with a pension insurance position in accordance with the provisions of the General Compulsory Pension Extension Order, which stipulates in section 6C of the pension that "the pension insurance obligation will apply to the salary paid to the employee, or the average wage in the economy as updated from time to time, whichever is lower." Zubas did not present any reason to intervene in the Regional Court's determination regarding the salary ceiling for deposits, when in fact he reiterated his arguments in the Regional Court without referring to the judgment that was given. Therefore, the aforementioned argument should be rejected.
- With regard to the amount awarded, we accept Zubas's argument, a claim that Bnei Yehuda did not address, according to which the court erred in the amount awarded in this component. Indeed, a reading of the judgment shows that at first the Regional Court relates to the sum of NIS 25,587, in accordance with the calculation that appears in section 101 of the Bnei Yehuda summaries in the Regional Court, while in the end it was awarded the sum of NIS 23,619 in accordance with the calculation in section 55 of those summaries, a clause that relates to another matter – a deposit for severance pay. A review of the regional judgment and the relevant summaries shows that this is a clerical error.
Therefore, Zubas is entitled for this component to the sum of NIS 25,587, under the amount stated in sections 105 and 187(b) of the Regional Judgment.
- 3. The amount of severance pay
- As for Zubas's appeal – in light of our determinations regarding the points bonus component and reimbursement of expenses, his appeal regarding the consideration of these components in the determining salary for calculating severance pay was rejected.
- As to Bnei Yehuda's appeal, it argued that in light of the provisions of the employment contract, it was appropriate to calculate the severance pay according to the minimum wage, and alternatively in accordance with the average wage in the economy as stated in the General Expansion Order in the Economy. The law of Bnei Yehuda's appeal is also to be dismissed, and we will explain:
- We are unable to accept the argument that in light of the provision of the employment contract, the severance pay should be calculated according to the minimum wage. The determining salary for calculating severance pay is set out in section 12(a) of the Severance Pay Law and the Severance Pay Regulations (Calculation of Severance Pay and Resignation Considered as Dismissal), 5724-1964. These are cogent provisions that the parties cannot stipulate (downwards). Therefore, in law, the Regional Court calculated the severance pay according to the salary that meets the provisions of the law and the regulations.
- For the same reason, the alternative argument should be rejected. Moreover, the ceiling of the average wage in the economy is relevant to the amount of contributions to the pension fund. It is not possible to derive from the provisions of the extension order the amount of salary according to which severance pay will be paid in accordance with the law.
- 4. Reduction in wages due to the outbreak of the coronavirus pandemic
- The Regional Court rejected Zubas' claim on this component, while determining that during the signing of the salary reduction appendix, he was represented by an attorney, as emerged from Zubas' own testimony. In addition, it was determined that it was not proven that Zubas was pressured to sign the appendix. The Tribunal noted that it had been proven to it that during the relevant period prior to the signing of the appendix, there was an exchange of words between the parties and drafts were forwarded that included a number of proposals and various outlines for a reduction in wages in a manner that was inconsistent with the unlawful exertion of pressure on a party to the agreement.
- In the framework of his appeal, Zubas reiterated the arguments he raised in the Regional Court with respect to the salary reduction appendix, according to which his signature on the appendix was done under duress, as defined in section 17 of the Contracts (General Part) Law, 5733-1973, and therefore, it was argued, he is entitled to payment of the salary that was reduced to him according to the appendix.
- As stated, the Regional Court rejected this argument because it did not get the impression that Zubas was indeed "forced" to sign the salary reduction appendix, inter alia, since Zubas was represented by an attorney at the time of the signing, since the parties were negotiating prior to signing and since Zubas did not take any action shortly thereafter, including applying to a judicial instance, for the purpose of obtaining immediate relief in the form of receiving the funds he claims. The cause of coercion set forth inthe Contracts Law has been interpreted in a narrow way and it relates to cases in which illegal or improper economic pressure is exerted[45], cases that Zubas has not proven. The rulings of the Regional Court in this matter are essentially factual determinations in which we have found no reason to intervene, and in any case Zubas did not present any reason to do so.
- Therefore, Zubas's appeal in this matter should be rejected.
- 5. Holiday Allowance
- As already noted, the claim for holiday pay concerns payment for work on holidays, and not entitlement to holiday pay in accordance with the provisions of the extension order of the general collective agreement that relates to this, and concerns payment of wages for a day of work that they did not work on due to the fact that it fell on a holiday.
- Section 18A of the Government and Legal Procedures Ordinance, 5708-1948 (hereinafter – the Ordinance) provides as follows:
"(a) Shabbat and Jewish holidays – the two days of Rosh Hashanah, Yom Kippur, the first and eighth days of Sukkot, the first and seventh days of Pesach and Shavuot – are the regular days of rest in the State of Israel.