The witness, Mr. Yeshaya : Nope.
Adv. Sharon: You never told him that.
The witness, Mr. Yeshaya : 29.12, it could be that he, you know, talked to me while I was working, told me '38,' I told him, 'No, 38 is 29.12 including your conditions.'"
Later on, Mordechai also explained that "and that when you deal with people for a year or two, you can't have your sentence all day long, 'December 29, including conditions'" (p. 62, paras. 14-15 of the hearing of September 30, 2024). Indeed, from the table as stated above, it can be seen that in some of the months the hourly wage, including the rights paid in the slip (such as: travel, convalescence pay, vacation, study fund allowance, pension and benefits) - amounted to a little over ILS 38, which is consistent with Mordechai's testimony.
- Mordechai testified consistently that the plaintiff was employed at minimum wage plus social benefits, in accordance with a signed employment agreement translated into the plaintiff's language. Mordechai testified that the salary was paid by bank transfer and that the defendant did not pay the plaintiff in cash, and that to the extent that the plaintiff complained about the wage differences, it was paid to him on the pay slip in accordance with what he had asked for from the time he relied on it (paragraphs 11-16 of Mordechai's affidavit, the pay slip for the month of 9/21).
- Therefore, and in view of all the contradictions in the plaintiff's version, and the discrepancies between his statements and the evidence presented (including the pay slips and their analysis), we find the plaintiff's version unreliable. Since the burden of proof is placed on the plaintiff's shoulders and he has not been lifted, we reject his claims regarding a different amount of hourly wage than the one listed in the pay slips, and therefore, his rights will be examined in accordance with the minimum wage set by law (ILS 29.12 per hour), as reflected in the employment agreement and the plaintiff's pay slips.
- As for Gaitum, according to Gautom (also known as Kobi), his hourly wage was initially a payment of ILS 35 and then increased to ILS 37 (the plaintiff did not mention in the statement of claim and in the affidavit whether it was net or gross salary). According to the plaintiff's approach, throughout the entire period of his employment, his salary was the result of multiplying his working hours by his hourly wage, and that alone. According to him, every month there were mistakes and Mordechai or Almog would make up for the differences in cash. For his work on Fridays or overtime, the plaintiff did not receive compensation as required by law, and he claims that the total number of hours of work listed in the slip is correct, but the rest of the details are incorrect (paragraphs 7c, 7f, and 7g of the plaintiff's affidavit).
- On the other hand, according to the defendant's approach, Gautom's hourly wage was a minimum wage (ILS 29.12 per hour) and this alone was in accordance with the subscription to the pay slips.
- After reviewing the arguments of the parties, the testimonies and the evidence, we have come to the conclusion that Goitom's claim regarding the amount of salary should be rejected.
- The plaintiff denied in his affidavit that he had signed an employment contract or received a document detailing the terms of his employment (paragraph 7d of the affidavit), but in his testimony in court when he was presented with an agreement with his signature, he admitted that he had indeed signed it at the beginning of his employment, but claimed that Almog "only signed us" (the plaintiff's testimony at p. 5, paras. 7-19 of the pro of November 20, 2022). Kerry, who did not explain to him what he had signed, claimed that she should be rejected. First, there is no reference to this claim in the statement of claim or in the plaintiff's affidavit, where he denied that he had received an employment agreement. Second, the agreement is in the Tigrinya language, which he masters, and therefore his claim that he did not understand the content of the agreement should be rejected.
- Therefore, and once the pay slips are in accordance with what is stated in the employment agreement, "in such a situation, then the assumption arises that the payment is in accordance with the notice to the employee and the details in the pay slip express the consent of the parties. This factual presumption stems from the fact that the burden imposed in the first place on the employee's shoulders was not transferred to the employer by virtue of section 5A of the Notice to Employee Law or section 26B(c) of the Wages Protection Law. This presumption is reinforced by the fact that the employee actually worked for a long time after he was given notice of the terms of his employment, and this knowledge strengthens the said factual presumption. An employee who wishes to claim that despite the notice and the details in the contractual consent slip, the burden is on to substantiate this claim" (CA (National) 34111-07-15 Gennady Ukrainsky - Moving Chess and Logistics in a Tax Appeal (February 7, 2019).
- Goitom attached to his affidavit a transcript of a conversation (undated) that supports his claim that his salary was ILS 37 and that he received payment in cash due to errors in the pay slip. The following is the exchange between the plaintiff, Almog and Mordechai (Appendix B to Goitom's affidavit):
"Mordechai: How much money did you get into the account?