Labor Dispute (Tel Aviv) 44232-09-22 Woldemariam Mahari – Glossy Cleaning M.B. Clean Ltd. - part 13

Moreover, Mordechai testified that when he mentioned an hourly rate higher than the minimum wage, he was referring to the wage received after adding the social conditions (how much the worker will receive per hour, including his accompanying rights).  And from that conversation between Mordechai and the plaintiff, it emerges that the hourly wage included the medical insurance contributions that were deducted from the employee's salary (Appendix B to the plaintiff's affidavit - p.  4, paras.  26-28 and p.  5, paras.  1-10 of the transcript of the conversation) - which also supports the defendant's claim that when he spoke with Gautom about the hourly wage, he included additional components.

103. Moreover, as stated above, we did not accept the plaintiff's arguments that there was an improper manner in which the convalescence pay was paid in the pay slips, since it was proven that the payment was made in accordance with the expansion order in the cleaning industry. In addition, we did not accept the argument that the payment in respect of a study fund in the amount of 8% of the salary and convalescence pay (under 7.5% of the salary and convalescence pay), due to a technical interest in the defendant's salary software, indicates that the coupons are not authentic. The payments for compensation and pension in the pay slips were also made in short (in the first month they were not paid at all) and therefore it cannot be said that they were made in order to inflate the wages (so that it would reach the level of the hourly rate claimed by the plaintiff) or in order to conceal the real hourly rate.
104. In addition to the above, there is a correlation between the total hours reported in the pay slips and the total hours in the attendance reports, which also supports the conclusion that the pay slips are authentic (even if there were errors in the classification of the value of the hours and the payment for them, as detailed below).
105. Therefore, we have reached the conclusion that the plaintiff did not bear the burden of persuasion that was on his shoulders, despite the transcript of the conversation presented by him. Alternatively, even if there was room to determine that the burden of proof shifted to the employer in light of what was stated in that conversation between Mordechai and the plaintiff, the defendant succeeded in lifting the burden imposed on it, when it proved with additional evidence (including on the basis of an analysis of the pay slips and the plaintiff's inconsistent and vague version), that her version was more consistent with the rest of the evidence than the plaintiff's version. Therefore, the plaintiff's rights will be calculated later according to the minimum wage (ILS 29.12 per hour) as stated in the pay slips.
106. As for Ayoub - according to Ayoub, his hourly wage was initially ILS 35, and then increased to ILS 37 (in his affidavit he claimed that the reference was to net wages). According to him, throughout the entire period of his employment, his salary was the result of multiplying his working hours by his hourly wage only. For his work on Fridays or overtime, the plaintiff did not receive compensation as required by law (see paragraph 14 of the statement of claim).
107. On the other hand, according to the defendant's approach, Ayoub's hourly wage was a minimum wage (ILS 29.12 per hour), and this was only in accordance with the subscription to the pay slips.
108. After examining the arguments of the parties, the evidence and the testimonies, we have reached the conclusion that the law of Job's claim regarding the amount of salary is to be rejected.
109. The defendant presented an employment agreement that was supposed to be signed by the plaintiff. Ayoub stated that he did not sign a notice to the employee and that he was not familiar with the "notice to the employee" that the defendant presented and that he saw it for the first time at the time of preparing the affidavit. It was further argued that the defendant's attorney did not provide the plaintiff's attorney with the original agreement despite a request on the matter (paragraph 20 of the plaintiff's affidavit).  In his testimony, the plaintiff also claimed that he was not familiar with the agreement submitted by the defendant and that the signature on the document was not his signature (  7 of the transcript of February 12, 2024, para.  34, p.  8, paras.  1-9 of Peru).
110. However, as stated in the summaries, it was noted that "perhaps they were indeed signed by the workers, but the plaintiffs did not know and did not explain their significance to them..." (paragraph 1 of the plaintiffs' summaries). As we have already noted, it is difficult to ignore the contradiction between the plaintiffs' summaries and what is stated in the plaintiff's affidavit and testimony, although this is a qualified statement and therefore we do not believe that it should be given much weight in this case.
111. A review of the agreement submitted to the file and a comparison of Ayoub's signature on his back to his signature on Form 101 gives the impression that there is a similarity between the signatures. However, in the absence of a professional opinion, the court does not have the tools to determine with certainty whether this is indeed its signature.
112. The agreement was submitted through Mordechai, who appears as the signatory, but in his affidavit he gave a general version, according to which, "As soon as the employees were hired, I signed the employment agreement that was translated especially into their language...(paragraph 9 of Mordechai's affidavit) and does not relate specifically to the plaintiff. Although we were impressed by Mordechai's testimony that there is a "procedure" according to which the workers first come, see the work and then give them an employment agreement that they sign, in the absence of a specific reference to Job there is difficulty in determining on the basis of the aforementioned that the agreement was given to him. Therefore, since we are dealing with a situation of hostile balances, we are of the opinion that the burden of persuasion regarding the terms of employment has been shifted to the defendant's shoulders.
113. Notwithstanding the aforesaid, and as will be detailed below, we are of the opinion that the defendant has borne the burden of persuasion and that the plaintiff's salary was the minimum wage as stated in the pay slips. Let us explain.
114. As emerges from the analysis of the plaintiff's pay slips - the division of the total net payment by the total hours specified in the pay slips does not support the plaintiff's version, if indeed the opposite. We will elaborate:

115. The division as aforesaid between the total net salary and the total hours (which the plaintiff confirmed are correct - paragraph 7H of the plaintiff's affidavit). Indicates that sometimes the plaintiff was paid less than ILS 35 per hour (for example, in the months of 8/2021 and 1/2022) and that in most months the plaintiff's salary exceeded ILS 35 per hour (months 9/21-12/21) or was ILS 35 (months 3/22 and 4/22). Moreover, the plaintiff's version that he earned ILS 37 is not supported at all by the record in the above coupons.  Hence, the plaintiff's version regarding the hourly rate claimed by him is somewhat contradictory, since even if we accept his claim, then in some of the coupons he received more than that.
116. If it was agreed with the plaintiff at ILS 35 per hour or ILS 37 per hour, it is clear that he would not have received a higher salary than what was agreed with him. However, in the month of October 2021, the plaintiff received ILS 7,349 (net payable), while if the number of hours appearing on the slip (208 hours) is multiplied by ILS 35 per hour, the result is ILS 7,280 (i.e., the plaintiff received ILS 69 more than he was entitled to receive, according to him). Another example of this is that according to what is stated in the pay slip for the month of April 22, the plaintiff worked 144.5 hours.  If you multiply 144.5 hours by 37 ILS per hour, the result is 5,347 ILS.  In practice, however, the plaintiff received ILS 6,175 in that month (i.e., ILS 828.5 more than he was entitled to receive, according to him).
117. Moreover, the plaintiff testified that the sums specified in the pay slips were transferred to his bank account and that sometimes he would also receive a sum of money in cash:

"Q.      Did you get more cash every month?

1. Yes. Sometimes they would give us cash when he would miss out on hours.  They give us less money than we deserve and then they give us an account, we tell them that we worked from this hour until this hour, and they pay us in cash. 
2. Would you do the math with Mordechai?
3. No, "Almog" (replied in Hebrew)
4. How many times do you remember receiving cash from Almog?
5. I can't tell you how many times, but regularly we would be taken off for hours.
6. Every month he would come and pay you in cash?
7. It's not all the time. When he is missing, we do a calculation, we tell him that we deserve 37 and when he is lacking, he would make up in cash. 
8. How much money would he give you?
9. I can't tell you how many. I happen to have a note that I wrote down for 207 ILS.  (The plaintiff turns to the lawyer and explains to her in Hebrew.)
10. How much money did you receive in cash, two thousand, thousand?
11. It wasn't short of a lot of money, 200, 250 ILS was missing".

(p.  6, paras.  32 and p.  7, paras.  1-15 of the prologue of February 12, 2024, emphasis added)