As for the number of days – as mentioned, for the last season (August 2019 – May 2020), the Regional Court awarded Mr. Zubas a remuneration for 6 holiday days. An examination of the details of the days of the holiday that Mr. Zubas attached shows that he was awarded an overpayment for this season. This is because given the Regional Court's ruling that there is no entitlement for the holidays of April (two days of Easter) due to the coronavirus, and given the lack of entitlement to the holiday of Shavuot, which falls on June 1, 2020 (in the months of June Zubas, everyone did not receive a salary), he was entitled to only 5 days of holiday: two days for Christmas (December 2019), two days for Rosh Hashanah and Revelation (January 2020), and one day for the Festival of Ascension (May 21, 2020).
In fact, not only for the last season, the Regional Court ruled that Zubas was overwhelmed, but also for two previous seasons (the first and third), since given that in the months of June-July of each year the salary was not paid and given that Shavuot fell in the months of June, these holidays should not have been rewarded, therefore, at most he was entitled to remuneration for 7 days of holiday in each season. However, Bnei Yehuda did not appeal this matter.
Therefore, Zubas's claim to entitlement to remuneration for additional holiday days is rejected.
- Now let's turn to the actual payment. As stated, Bnei Yehuda is of the opinion that taking into account the industrial context and its claims regarding the weekly rest, Zubas is not entitled to payment for his work on the days of his holiday, and alternatively, the remuneration for his work on the days of his holiday should be calculated according to the minimum wage. According to Zubas, the remuneration awarded to him is low and that he is entitled to payment at a rate of 150% for each holiday, and not at a rate of 50%, according to the ruling of the Regional Court.
- While we determined that Zubas's salary included the remuneration for work on a week's rest, the remuneration for work on holidays, which according to the Ordinance is as a remuneration for work on a week's rest, was also included in the salary. Therefore, there is no need to address the other questions that arise.
- In light of the compilation, Zubas's appeal in this component is rejected and Bnei Yehuda's appeal is accepted, so that its obligation to pay Zubas holiday pay as stated in sections 172 and 187E of the Regional Court's judgment is nullified.
- In the margins, we will note beyond the note in section 100 above that it is appropriate for the association to regulate in the players' contract (the player form) the issue of holidays that are acceptable to non-Jewish players.
- 6. Convalescence Pay
- In this regard, the Regional Court ruled that the convalescence pay can be included in the salary if it was expressly agreed upon, but in our case this was not expressly agreed. The court ruled that the agreement in the employment contract according to which Zubas would not be entitled to additional payments over and above those stipulated in the employment contract was insufficient. In addition, it was determined that the splitting of the convalescence pay component from the salary stipulated in the employment contract was done artificially, and therefore Zubas is entitled to convalescence pay separately.
- We have a different opinion. It has already been determined that unlike remuneration for overtime work or weekly rest and annual leave (in light of section 5 of the Wages Protection Law) and severance pay (in light of section 28 of the Severance Pay Law), convalescence pay can be included as part of the employee's salary if the agreement to include it in the salary has been explicitly and unequivocally accepted[48]. Admittedly, in our case, the employment contract does not explicitly state the convalescence pay. However, the employment contract explicitly and unequivocally stipulated that the consideration paid to Zubas includes all of his rights and that he will not be entitled to additional payment. With regard to severance pay, annual leave, and remuneration for overtime work and weekly rest, this explicit consent is invalid in light of the cogent provisions of the law. However, when it comes to convalescence pay, explicit consent is valid. The question is in fact not a question of validity, but of the interpretation of the content of the consent. In the circumstances of the case, given the industry context whereby Zubas is not entitled to payments that are beyond what is stipulated in the employment contract, and given that Zubas was represented at the time of signing the employment contract, we are of the opinion that Zubas's employment contract can be viewed as an explicit and unequivocal agreement whereby at least any element that can be included in the salary, including convalescence pay, will be included in the salary. In the circumstances of the case, Zubas's employment contract can be interpreted from the perspective of the objective intentions of the parties to the agreement, as it also relates to the convalescence pay component. This conclusion can be reached even if we ignore (taking into account Zubas's lack of command of the Hebrew language) the fact that the pay slips give expression to the payment of convalescence pay, which at least indicates the intention of Bnei Yehuda.
- In light of the aforesaid, the law of Bnei Yehuda's appeal in this matter to be accepted and its obligation to pay Zubas convalescence pay is canceled. In light of the result, there is no need to calculate the convalescence pay in the judgment and to question the scope of his position.
- 7. Interest and linkage
- According to Zubas, the Regional Court erred in not determining that the payments that were awarded in its favor in the judgment would bear linkage and interest differences. Bnei Yehuda, for its part, argued that the ruling on linkage and interest differentials is left to the discretion of the Regional Court.
- Indeed, Bnei Yehuda's argument that in accordance with the provisions of the Interest and Linkage Rulings Law, 5721-1961 (as drafted at the time of the judgment of the Regional Court), the ruling on linkage and interest differentials is at the discretion of the court that issued the judgment. However, it has already been determined that in a case where there is no reference to this component, it can be assumed that this is an accidental omission. Thus, for example, it was held in the case of Tel Aviv University[49]:
"The rule is that linkage and interest differentials are intended to preserve the real value of the money that was withheld and to compensate the creditor for the use made by the debtor, and their rulings do not constitute 'punishment of the debtor'. They are a translation of a debt whose maturity date applies in the past to the concepts of the value of money at the time of its repayment. In general, linkage and interest rates are intended to achieve distinct and separate goals. 'The linkage is intended to preserve the real value of the money' and 'the fee for the use of the money is the interest.' Therefore, and 'in the absence of special reasons, interest should be awarded on sums due to the litigant for the past' in addition to linkage; and 'only in exceptional cases and in special circumstances that justify this, will the court refrain from making full use of its discretion' that is given to it by virtue of the law to award interest and linkage. When the judgment does not specify 'any special reason for not ruling interest,' then 'the omission was done inadvertently.'"
- In his case in the regional judgment, there is no reference to linkage and interest from the date of the creation of the cause of action until the date of actual payment, and therefore we can only assume that this is an accidental omission[50]. In light of the aforesaid, and given the wording of the Interest and Linkage Rulings Law as drafted at the time of the judgment of the Regional Court, the Zubas appeal is accepted as follows:
- To the severance pay in the amount of NIS 168,758 (section 187A of the Regional Court's judgment), linkage and interest will be added as required by law from the date of termination of employment - June 1, 2020, until the date of actual payment.
- To compensate for the failure to make a deposit to the pension fund in the amount of NIS 25,587 (section 134 above), linkage and interest will be added as required by law from August 1, 2018 – the middle of the period – until the actual date of payment.
- To the salary differentials in the June 2020 slip (section 187 G of the Regional Court's ruling), linkage and interest will be added as required by law from the date of their payment – July 1, 2020, until the date of actual payment.
- To compensate for the defects in the pay slips (section 187 H of the Regional Court's judgment), linkage and interest will be added as required by law from the date of the Regional Court's judgment – August 5, 2024, until the actual date of payment.
- 8. Withholding of severance pay
- The rule is that the trial court has broad discretion in awarding severance pay and the appellate court is not inclined to interfere with this discretion[51]. In contrast to the issue of linkage and interest differentials, the Regional Court explicitly referred to this component and rejected Zubas' claim in this matter[52], while holding that the non-payment of severance pay stemmed from a genuine dispute between the parties regarding the very entitlement to severance pay – a dispute that is substantial. Therefore, since we have not found that this case justifies a deviation from the halakha in the matter, the appeal on this component should be dismissed.
- 9. Expenses
- In his appeal, Mr. Zubas argued that the Regional Court erred in not awarding expenses (legal expenses and attorney's fees) in his favor, and his claim was partially accepted. As stated, the Regional Court justified this determination, inter alia, on Mr. Zubas's procedural conduct, including the fact that Mr. Zubas's affidavit was not signed and verified in accordance with the law, without reporting it to the Tribunal.
- It should be recalled that as a rule, an appellate court is not inclined to intervene in the ruling of expenses by the trial court, and that the ruling of expenses is at its discretion[53]. In the circumstances of the case, and given that in any case some of the sums awarded in his favor in the Regional Court were cancelled in the appeal, we found no reason to deviate from this rule. The Regional Court's ruling does not deviate from the scope of discretion and is acceptable to us. Therefore, Zubas's appeal on this component should be dismissed.