Mehri's lawsuit
Mehri's employment format - working days and working hours and his claim for remuneration for overtime work and weekly rest
- The plaintiff claims that the period of his employment is divided into two (paragraph 13 of the statement of claim and sections 6b-e of the affidavit of Mehri):
From 9/20 to 7/21: The plaintiff was employed as a cleaning worker only on the weekly rest days, i.e., on Fridays and Saturdays. On Friday he was employed in a 9-hour shift, and on Saturday he worked a 16-hour shift.
The plaintiff claims that during this period, he was not paid remuneration under the law during the weekly rest days beyond the 8th hour on the basis of 175% and 200%. Therefore, he is entitled to differences for 7.5 hours of overtime on Shabbat, for a total of ILS 10,879.
From 8/21 to 3/23: The plaintiff was employed as a cleaning worker 7 days a week, Sunday to Saturday (inclusive).
From Sunday to Thursday he was employed from 7:00 to 15:00, in an 8-hour shift.
On Friday, the plaintiff worked from 7:00 a.m. to 3:00 p.m., and after a one-hour break, he returned to work from 4:00 p.m. to 24:00, i.e., a 16-hour work shift.
On Saturday, the plaintiff was employed from 8:00 a.m. to 24:00, an additional 16-hour work shift.
The plaintiff claims that since during this period he worked 42 hours from Sunday to Thursday, then, for his work on Fridays starting from the third hour, he is entitled to pay 125% and 150%, and for his work on Saturdays he is entitled from the first hour to be paid according to 175% and 200% per hour, business restrictions - ILS 71,638.
- On the other hand, the defendant claims that as a rule, the plaintiff was employed for 6 days a week, first part-time, in which he also combined work on Saturdays, and after a few months he worked full-time, from 7:00 a.m. to 3:00 p.m., and sometimes also overtime. The plaintiff worked overtime and/or on Shabbat, and these were paid to him in accordance with the law and law, as appears from the pay slips (paragraph 12 of the statement of defense).
- In the defendant's affidavit, she added that over time, and after the plaintiff found another job, he reduced his working hours to 7 hours a day, including a break, until he could no longer fulfill his obligations to the defendant. It was also noted that insofar as the plaintiff worked on a Saturday, he had an alternate weekly rest day during the week (paragraph 13 of the statement of claim and paragraphs 6b-e of the Mehri affidavit).
The normative framework:
- According to Section 26B(a) of the Wages Protection Law, 5718-1958, "In an employee's claim for payment of wages, including overtime pay or weekly rest pay, in which the working hours for which the wages are claimed are disputed, the employer will have the burden of proving that the employee was not available to work during the disputed working hours, if the employer did not present attendance records from the work hours book. As much as he has to manage." This is subject to a ceiling of up to 15 weekly overtime hours or up to 60 monthly overtime hours (as stated in section 26b(b) of the law). Beyond this quota, the burden remains on the employee according to the usual rules. Such a presumption is intended to provide a remedy to an employee who found himself harmed as a result of his employer's recorded omissions, since in the absence of attendance reports, lifting the burden of persuasion becomes a difficult task, even impossible.
- When the employer in the workplace records and monitors the working hours of its employees, but a certain employee refuses to do his part for the purpose of this registration (such as not signing an attendance card or refraining from reporting the working hours to his employer, even when required to do so), there is no justification for applying the presumption. The reason for the evidentiary damage inherent in the breach of the registration duty was not imposed on the employee, but rather the employee caused it to come into existence despite the employer's desire to maintain a record of working hours (as stated in Labor Appeal (National) 15071-09-22 Komei Protein Recycling (1993) in Tax Appeal - Meir Sa'ad Buta (July 19, 2023), paragraph 27 of the judgment).
- In the event that the employer was the one who caused the evidentiary damage because he did not ensure that hours reports were made at all or that they were not lawfully prepared, in order for the question of overtime to be "disputed", the employee has a primary burden of presenting a factual version, supported by an affidavit or testimony, with respect to the overtime hours or hours of work during the weekly rest in which he worked and claims that he was not paid the wages to which he is entitled by law. In addition, the employee is required to present a calculation, if only by way of an estimate of the amount claimed by him as wages and overtime pay on the basis of his version (Labor Appeal (National) 24946-09-14 Ryan Zeinat - A.S. Ashmoret in Tax Appeal (August 4, 2016), paragraph 8 of the judgment).
- In order to examine the question of whether an employee is entitled to compensation for overtime work, the National Court has listed various situations in which the court will have to examine the burden of proof and persuasion in accordance with the circumstances before it. In the matter of Labor Appeal (National) 47715-09-14 Uzi Riani - Eliasi Marketing in a Tax Appeal (March 29, 2017), it was ruled as follows:
"For the purpose of implementing section 26B, it is therefore possible to distinguish between a number of possible situations with respect to the degree of certainty in the fulfillment of the condition of overtime work, which underlies the payment of overtime pay, and the degree of certainty in the scope of the additional work. These are: