Non-Jews have the right to observe days of rest on their Sabbaths and holidays. These holidays will be determined for each community according to the government's decision to be published in the Official Gazette.
(b) Instructions Hours of Work and Rest Law, 5711-1951, which apply to the weekly rest shall apply:
(1) regarding a Jew – about the festivals of Israel;
(2) As for a non-Jew – about Jewish holidays or holidays of his community, all according to what is acceptable to him."
As a result of the provision of section 18a(b) of the Ordinance, inter alia, an employee who is employed on his holidays is entitled to be absent from work, and if he works on his holiday, he is entitled to receive remuneration as he would have received if he had been employed on a weekly rest (section 17 of the Hours of Work and Rest Law).
- Before we turn to the body of appeals, we will note that the burden of proving which holiday days are acceptable to the employee is on the employee[46]. This is a factual question. In contrast to the Kisselgoff case, Bnei Yehuda did not dispute that the holidays accepted by Zubas were the days of the festival according to his religion. Nor did the Bnei Yehuda argue that in "real time" the days of the holiday that were acceptable to Zubas were the Jewish holidays on which he did not work (play or practice) and that there is no room for the argument raised in retrospect that the days of the holiday that were acceptable to him were precisely those according to his religion. Therefore, the starting point for our case is that the days of the holiday that were acceptable to Mr. Zubas when he played for Bnei Yehuda were the days of the holiday according to his religion.
- In accordance with section 18a(a) of the Ordinance, the government has determined that the days of the holiday for members of the Christian community are[47]: Christmas (two days) (falls in the month of December – AA); Rosh Hashanah and Revelation (falls in the month of January – AA); the Friday before Easter and the second day of Easter (falls in the month of April – AA); ascension (falls in the month of May – AA); the second day of Shavuot (falls in the month of June, except in 2018, when the holiday falls in the month of May – AA). A total of 8 holiday days per year (like the 8 days of the holiday according to the Jewish religion).
- As stated, the Regional Court ruled that for the Christian holidays in which Mr. Zubas worked (training or playing) – in accordance with the details presented by him (except for the Corona period) – Mr. Zubas was not paid a salary increase, and therefore he is entitled to an increase of 50% of his daily salary. The Regional Court ruled the remuneration for 30 days of the holiday (8 for each of the first three seasons, and 6 days for the last season).
- According to the employee's claim, there was room to award him the said remuneration for 31 days of the holiday, since according to the claim, the court did not award remuneration for the holiday that fell on May 21, 2020 (the ascension of Jesus to heaven).
Before we address the substance of the claim, we note that Mr. Zubas stated that he worked (acting or training) on each of the Christian holidays. Bnei Yehuda did not dispute this. Bnei Yehuda also did not refer to those holiday days that fell on Sundays. Therefore, another starting point for our matter is that Zubas worked during the holidays, and insofar as he is entitled to remuneration for this reason, he is entitled to remuneration for these days.