From the general to the individual
- In the present case, for most of the period of the plaintiff's employment, the defendant did not produce duly prepared attendance reports.
- Mordechai stated that the recording of work hours was done over the years in various ways - at first the employees reported the number of hours they performed manually, but due to complaints by the service client about inaccuracies, the employees were later required to report attendance through an application (which indicates the employee's location at the time of signing), but since the employees did not always report from the workplace, later on they were required to sign attendance on the attendance clock on the defendant 2's website (using a fingerprint) and even then they would "forget" to sign at the entrance or exit (Sections 31-39 of Mordechai's affidavit in Mehri's lawsuit. See also the testimony of Mordechai at pp. 30-31 of Peru).
- From a review of the attendance reports prepared in Excel for the months 9/2020 - 12/2021 (inclusive) - the working hours were indicated as round hours (e.g., 7:00 - 15:00) and not according to exact hours, which casts doubt on the reliability of the registration. These reports are not signed by either party. Mordechai declared, as stated, that during the period when the hours were recorded on the basis of the hours reported by the employees, they were recorded in an Excel report that the defendant prepared and transferred to the service provider for payment for the hours (paragraphs 33 and 38 of Mordechai's affidavit in Mehri's lawsuit). According to him, sometimes the customer would refuse to pay on the grounds that the report was incorrect. This means that these are Excel reports that were prepared manually by the employer (the defendant), on the basis of a report by the employee that was not presented (paragraph 38 of Mordechai's affidavit).
- For the month of 1/2022, no attendance report was presented.
- In the months 2/2022 - 4/2022 (inclusive) the plaintiff reported the hours worked through an application - during this period, there is (for the most part) a match between the number of hours reported on the slip and the number of hours reported in the attendance report (except for the month of 2/2022 for which two attendance reports were presented, only one of which matches what is stated in the pay slip). As stated above, Mordechai claimed that the difficulty in this system was that the employees did not cooperate - the plaintiff would sign the application while sitting at home or sign at the exit when he was already at his second job (paragraph 34 of the defendant's affidavit). Indeed, a review of the reports for these months shows that in some cases the plaintiff was not present at the meeting when he reported his presence on the application.
- For the months of 5/2022 and 6/2022, Excel reports with round hours were presented.
For the month of July 2022, no attendance report was presented at all.
- As indicated by the attendance reports, from August 2022 to March 2023, the plaintiff began to report by stamping an attendance clock on the defendant 2's website. Some of these reports lack data regarding the time of entry or time of departure. Mordechai argued that this stemmed from the plaintiff's "forgot" to sign, and it appears that this explains the discrepancy between the number of hours on the pay slips and the attendance reports for the months of 8/2022, 10/2022, 11/2022, and 12/2022 (the number of hours on the pay slip exceeds the number of hours in the report). For the month of September 2022, two attendance reports were presented. In the months 1/23 - 3/23 there is a match between the number of hours recorded in the report and the number of hours recorded in the slip.
- In addition, some of the pay slips (for the months of 11/2020, 9/2021, 4/2022, and 5/2022) contain payments for wage differentials - regarding which Mordechai testified that this was done on the basis of the employees' reporting (paragraphs 35, 37-39 of Mordechai's affidavit). In his testimony, Mordechai was unable to explain why the 11/2020 pay slip contained wage differences for 30 hours for the previous month, which were not reported in the October 2020 report (see his testimony at p. 42, paras. 7-24 of Peru). He later testified that he would complete hours in order not to lose employees.
It follows from this that the defendant herself admitted that the recording in the attendance reports does not necessarily correspond to the hours actually done (otherwise there would have been no need to pay wage differentials for those hours that do not appear in the reports and are added to what is stated therein).
- Moreover, in some cases, the classification of hours according to what is stated in the report - regular, additional with a value of 125% or 150% does not correspond to the actual hours that appear on the pay slip. Moreover, in some months, the plaintiff received overtime pay worth 125% and not 150%, even though according to the hours reported in the attendance report, he was supposed to receive payment at a value of 150%. This means that it is not possible to determine with certainty that the entry on the pay slips accurately reflects the actual hours of work that the plaintiff worked (the total hours and their value).
- In view of the above, with regard to reports that were prepared manually (for the months of 9/2020 - 12/2021 and for the months of 5/2022 and 6/2022) - from the moment the reporting in them is based on round hours, and they are not signed by the employee and the employer, and in some cases inaccuracies or discrepancies were also found between the registration in the report and the recording of the hours on the pay slip, the burden of persuasion shifted to the defendant to prove the plaintiff's working days and working hours. This is also true with respect to the months for which no reports were presented at all (months 1/2022 and 7/2022).
However, with regard to the months in which the reporting was done through the application (2/2022 - 4/2022 (inclusive)) or through the attendance clock on the Defendant 2 website (months 8/2022 - 3/2023) - we are convinced by a review of the reports that the plaintiff himself caused the evidentiary damage, both because in some cases he did not report in the system from the workplace and because in some cases he did not fulfill his obligation to sign attendance, and therefore the burden remains on the plaintiff's shoulders.