Labor Dispute (Tel Aviv) 44232-09-22 Woldemariam Mahari – Glossy Cleaning M.B. Clean Ltd. - part 20

Beyond that, at least in relation to part of the period (8/2021 - 3/2023), the plaintiff claims to be entitled to remuneration for hours exceeding the ceiling of up to 15 weekly overtime hours or up to 60 monthly overtime.  Therefore, with respect to hours that are beyond this quota, the burden of persuasion remains on the plaintiff's shoulders according to the usual rules.

146. When we determine who bears the burden of persuasion in relation to the different periods, we will turn to an examination of the plaintiff's factual version regarding the nature of the work, and examine the entire fabric of evidence.
147. As for the working days - in the present case, there is an employment agreement signed by the plaintiff (even though he claimed that the registrar "does not understand"), according to which the plaintiff will be employed for 6 working days (Appendix N2 to Mordechai's affidavit in Mehri's file).
148. With regard to the months of 9/2020 - 7/2021, the parties agree that the plaintiff worked part-time. The plaintiff claims that during this period, he worked two days a week during Friday and Saturday.  The defendant, for its part, refers to what is stated in the attendance reports, which show that in most of the months as aforesaid, the plaintiff indeed worked two days a week (10/2020, 11/2020, 12/2020, 1/2021, 3/2021), and in some of them he worked even more.  According to the attendance reports, in some of the aforementioned months, the plaintiff worked on Fridays and Saturdays (12/2020, 1/2021, 2/2021), but there were months in which he also worked in the middle of the week (10/2020, 11/2020, 3/2021, 7/2021), and even almost a 4-6 working day job (for example, in the months of 9/2020, 4/2021, 5/2021).  Thus, for most of the period as aforesaid, the plaintiff actually worked less than 6 days a week.  As will be detailed below, contrary to the plaintiff's factual version, it was not proven that he worked every week on Saturday for all these months.
149. As for the months of 8/2021 to 3/2023, the plaintiff claimed that he worked 7 days a week. However, according to attendance reports, he usually worked 6 days a week (in a few cases, he also worked five days a week).  According to attendance reports, he usually worked Sunday-Friday and did not work on Saturday (except for a single case in May 2022).  Most of these reports were produced through the application based on the location or attendance clock that was located on the site of defendant 2, and therefore they can be attributed greater evidentiary weight with regard to the number of days the plaintiff worked.
150. In a testimony he gave to the Ministry of Labor inspector on January 11, 2022, the plaintiff said, "I work all week except Wednesday, I work from 7:00 to 15:00" (Appendix N2 to Mordechai's affidavit in Mehri's file). In other words, he worked 6 days a week.  However, in his testimony before the court, the plaintiff testified that when he was asked by the Ministry of Labor inspector, "How many days a week do you work," he replied, "I told them six days, and I told them on Shabbat as well" (p.  11, paras.  26-27 of Peru).  He later noted that he replied "all week, and also Friday and Saturday" (p.  12, paras.  1-2 of Peru).  Thus, once the plaintiff testifies that he worked for 6 days and sometimes he testifies that he worked for 7 days, which indicates that the plaintiff tried to adapt his testimony to the needs of the prosecution.
151. The conversations between the plaintiff and Mordechai (the date of which are unknown) indicate that the plaintiff also worked on Saturdays (which was also confirmed by Mordechai in his testimony - Appendices B and D to the affidavit of Mehri as well as in Mordechai's testimony at p. 27, paras.  33-34 of Peru).  However, since the conversations were submitted without specifying the date on which they took place, it is impossible to know whether they took place during the period in which the plaintiff worked mainly on Fridays and Saturdays (part-time) or during the period in which he worked six days a week (full-time and beyond).  Moreover, even if the plaintiff worked from time to time on Saturdays during the period of employment, including during the second period in which he was employed full-time (8/2021 - 3/2023), this does not indicate that the plaintiff worked 7 days a week, every week.  Thus, for example, in May 2022, the report states that the plaintiff worked on Shabbat but did not work on Friday (i.e., he worked only 6 days that week, see Mordechai's testimony in this regard, according to which the plaintiff did not work all the time and consistently on Saturdays, p.  29, paras.  12-33 of Peru).
152. In light of the above, our conclusion is that with regard to the months of 9/2020 - 7/2021, the plaintiff actually worked less than 6 days a week (as will be detailed below). With respect to the months of 8/2021 - 3/2023, the plaintiff's claims, according to which he worked for 7 days a week, should be rejected.  As stated above, the defendant's version is supported, inter alia, by the employment agreement signed by the parties, and by the electronic reports that the plaintiff signed in real time - in the application or on the website of defendant 2 (although only for part of the period).
153. As to the plaintiff's working hours, it is agreed between the parties that the plaintiff worked overtime as well as during the weekly rest (as is also reflected in the pay slips), and the dispute relates to their scope.
154. As will be detailed below, although there are inaccuracies in some of the attendance reports as described above, both in the number of hours and in their classification, we are not convinced that the plaintiff worked in the format described by him. Let us explain.

For the months of 9/2020 - 7/2021 (inclusive):

155. In his testimony, the plaintiff confirmed that he would have given the defendant the report of the hours he would have worked during the period in which the report was made manually (see p. 14, paras.  5-7 of the pro of the hearing).  The conversations whose transcripts were attached to the plaintiff's affidavit also indicate that he had a lively conversation with Mordechai and Almog regarding the number of hours for which he was supposed to receive payment that month (see Appendices B-D to the plaintiff's affidavit).  Despite the aforesaid, the plaintiff did not attach the record of the hours he made during the period of his employment (with the exception of two text messages for the months of October 2021 and October 2020) and did not explain why he did not do so.
156. In a conversation between Mordechai and the plaintiff (at an unknown date), Mordechai was angry that the plaintiff claimed that he was entitled to payment for 79 hours since the plaintiff "worked only in the morning" and he believed that the plaintiff was entitled to payment only for 63 hours (p. 1, para. 12 of the transcript of the conversation that was attached as Appendix B to the plaintiff's affidavit).  In the same conversation, Mordechai confirmed that there is a standard for Shabbat hours: "We go at three o'clock and return to six.  We leave at three o'clock and return at six, we do not stay all Shabbat" (at p.  3, paras.  27-28 of the transcript of the conversation that was attached as Appendix B to the plaintiff's affidavit).  However, it is clear from the conversation that even according to the plaintiff, he did not work every Saturday for 16 hours that month (see p.  1, paras.  12-19 of the conversation that was attached as Appendix B to the plaintiff's affidavit.  ).  If, as the plaintiff claims, the employment pattern was about 9 hours on Fridays and about 16 hours on Saturday, every week, then his total monthly hours were supposed to be at least about 100 hours (4 times a month * 25 hours = 9 + 16), whereas from this conversation it is clear that his total monthly hours was, at most, a total of 79 hours per month.
157. A review of the attendance reports submitted to the case shows that during the first period (during which he claimed he worked only on Fridays and Saturdays, 25 hours a week, 9/2020 - 7/2021), there were also months in which the plaintiff received payment for more than 100 hours. For example, in April 2021, it was reported that the plaintiff worked 180 hours and received wages for them; In May 2021, it was reported that the plaintiff worked 232 hours and was paid for 290 hours; In June 2021, it was reported that the plaintiff worked 134 hours (in accordance with the pay slip). In other words, the plaintiff's version that during these months he worked two days a week, business restrictions - 100 hours a month, is inconsistent with the aforesaid.
158. Moreover, when asked by the Ministry of Labor Supervisor about his working hours in the aforementioned months (4-6/2021), he confirmed that the reports are correct:

"Q.  I present to you your attendance reports for the months 4-6/21 marked ...  Are these the days and hours you worked?

1. Yes, these are my hours, I approve.
2. In the reports it is sometimes stated that you work in the evening as well?
3. Yes, on Fridays it happens that I work in the evening" (emphasis added).
4. The conclusion of the matter is that the plaintiff's version regarding the work format in the months of 9/2020-7/2021, according to which he worked weekly on Friday-Saturday, business restrictions - 25 hours per week, 100 hours per month, of which 7.5 hours of overtime per week and 32.25 hours of overtime per month - was concealed. Therefore, although we have reached the conclusion that the reports were not reliable or accurate, and therefore the burden of proof has shifted to the employer, we have reached the conclusion that the defendant has lifted the burden of persuasion, and proved that the plaintiff is not entitled to overtime pay for the number of hours claimed by him.
5. Needless to say, in these circumstances, in which the plaintiff himself does not claim that he is entitled for the period from 9/2020 to 7/2011 overtime pay for 15 hours per week and 60 hours per month, but rather for a smaller number of hours (7.5 hours of overtime per week and 32.25 hours of overtime per month), there is no reason to rule on him according to the presumption in the law and the Reani ruling.
6. We debated whether the plaintiff should be awarded the differences due to the hourly rate on the basis of the reports in the attendance reports in the case for the aforesaid period (9/2020 - 7/2011). However, in the absence of an alternative calculation by the plaintiff based on them, we have reached the conclusion that there is no reason to award him the difference in payment in respect of this.
7. In relation to the months of 8/2021 - to 3/2023 -
8. It is agreed by the parties that for six days a week the plaintiff worked 8 hours - from 7:00 to 15:00, antitrust - 48 hours.  In other words, even according to the defendant, the plaintiff worked 6 hours of overtime per week every month during the aforesaid period (of which 2 hours were worth 125% and 4 hours were worth 150%).
9. The dispute relates mainly to the plaintiff's claim that on Friday he worked two shifts (the morning shift from 7:00 to 15:00 (about which there is agreement) and the evening shift between 16:00 and 24:00 (about which there is a dispute)) - 16 hours of business restrictions; and also the plaintiff's claim that he worked on Saturday, from 8:00 to 24:00, i.e., for 16 consecutive hours (about which there is a dispute). Antitrust - 30 overtime hours per week, 129 overtime hours per month (on the basis of the aforesaid, the plaintiff calculated in the statement of claim that since according to him 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 150%, and for his work on Saturdays he is entitled to payment of 175% and 200% from the first hour).
10. As stated above, we are not convinced that the plaintiff worked 7 days a week. Therefore, if only for this reason, the plaintiff's version regarding the format of work and the hours of work during that period should be rejected.
11. In addition, the plaintiff's version is also concealed from the attendance reports submitted to the file for the months in which the plaintiff reported electronically - whether through the application (2/2022 - 4/2022 (inclusive)) or through the attendance clock installed at the meeting (8/2022 - 3/2023).
12. Thus, for example, during the period in which he signed through the application: in February 2022, the plaintiff worked only during the weekdays, usually between 7:00 and 15:00; In March 2022, the plaintiff started work around 7:00 a.m. (sometimes he was late or started around 8:00 a.m.) and finished work at about 3:00 p.m.; In April 2022, the plaintiff worked in the mornings, Sunday-Friday, between 7:00 and 15:00 (sometimes he even started working later around 8:00 or 9:00 and finished around 3:00 p.m.).
13. During the period when he reported attendance using the attendance clock on the defendant 2's website, on days when he did not "forget" to sign, it can be seen that his work format was as follows: In August 2022, the plaintiff worked from Sunday to Friday between approximately 7:00 - 15:00 (on some days the plaintiff even started working only around 7:30 a.m. and finished a little after 3:00 p.m.); For the month of September 2022, it is seen that he began working a few minutes after 7:00 and finished working around 15:00; In October 2022, he worked Sunday-Friday between about 7:00 and even later and finished working around 3:00 p.m., etc.
14. Thus, the electronic reports (via the app and fingerprint) indicate a six-day work schedule between the hours of 7:00 and 15:00 - business restrictions of 8 hours, and even less. The plaintiff did not claim that there were shifts that he did not sign at all (whether through the app or through the attendance clock).
15. The testimony he gave to the inspector on behalf of the Ministry of Labor also supports the aforesaid. As stated there:

"Q.  What is your employment framework?

1. I work all week except Wednesday, I work from 7:00 to 15:00.
2. Do you have a break from work?
3. Yes, I have a half-hour break.

...

1. Do you keep an attendance record for yourself?
2. I have it on the phone.

...

1. Do you do overtime?
2. Sometimes I work overtime."
3. The defendant's claim that towards the end of the work the plaintiff did not work even 8 hours a day was proven by a conversation between the plaintiff and Mordechai in which the plaintiff confirmed that he was not performing the 8 hours he was supposed to work but rather that he was working about 7 hours (in Appendix N3 to Mordechai's affidavit in Mehri's lawsuit). In the same conversation, Mordechai tried to persuade him to arrive earlier or leave later in order to complete the standard of 8 hours of work, but the plaintiff claimed that he could not arrive earlier because in the morning he had to drop his child off to kindergarten, and regarding the afternoon he stated that he was working elsewhere and that he did not want to work eight hours a day.
4. When he was asked in his testimony in court about his claim regarding additional work, the plaintiff testified that he worked in two places on Shabbat, but when asked where he worked on Shabbat, he answered evasively and did not answer the question (see p. 13, paras.  14-20).  He later denied that he worked in another place, and claimed that when he told Mordechai that he was working in another place in the evening, he made it up because he did not want to work after 3:00 p.m.  (p.  14, s.  27-31, p.  15, s.  1-24, p.  16, s.  1-7).  Thus, his testimony on the matter was full of contradictions and supports the defendant's claim that towards the end of his employment, the plaintiff did not work and did not want to work 8 hours a day.
5. In addition, the evidence shows that the plaintiff himself violated the integrity of some of the attendance reports. For example, in the months of 2/2022 - 4/2022 (inclusive) - in some cases, the plaintiff reported on the app while he was not at the workplace.  In some of the months in which he reported using the attendance clock in defendant 2 (8/2022 - 12/2022), the plaintiff did not always sign a card at the time of entry or exit.  In doing so, the plaintiff caused evidentiary damage to the defendant (the defendant claims that as a result of this, she was forced to simultaneously manage an Excel report to make up for the missing hours).  It should also be noted that in those months in which the plaintiff "forgot" to sign with the attendance card or through the application, he received payment on the pay slip for a greater number of hours than is detailed in the attendance reports - which also supports the defendant's claim that she simultaneously made her own registration and the plaintiff received payment for hours that were not reported by him as required, inter alia, also in order for the employee not to leave (as stated in Mordechai's testimony at p.  31, S.  21-39, p.  32, S.  8-19, P.  37-40, and p.  41 S.  5-6 for Peru.  See also what is stated in paragraphs 169-170 of the defendant's summaries).
6. On the basis of the above, we conclude that with respect to the period from 8/2021 to 1.3.2023, the defendant's version, according to which the plaintiff worked 6 days a week, 8 hours a day (from approximately 7:00 a.m. to approximately 3:00 p.m.), and that he sometimes worked even less, and that he worked only a few days on Saturdays (but that week he would have received an alternative day of rest) should be accepted.
7. It has not escaped our notice that during the aforementioned period (8/2021 - 1.3.2023) there were months in which the reporting was done manually, or no reports were presented at all, or duplicate reports were presented for that month. However, in view of the aforementioned tapestry of evidence (including the plaintiff's testimony at the Ministry of Labor and the Tribunal, the transcript of the conversation with Mordechai, as well as the electronic reports spread over 8 months out of 19 months), we have reached the conclusion that the plaintiff did not work in the format of hours claimed by him.  Moreover, with regard to the months in which the hours exceed 15 hours per week (60 hours per month) or months in which the plaintiff himself caused evidentiary damage in the report, in any case the burden of persuasion was on my shoulders and it was not lifted by him.
8. However, while even according to the defendant's version the plaintiff worked 6 hours of overtime according to a weekly calculation (since according to her version he also worked 6 days a week, 8 hours = 48 hours, i.e., more than 42 hours per week), and in the absence of an accurate alternative calculation by the defendant based on the attendance reports, we determine that the plaintiff is entitled to differences in respect of overtime pay for the months 8/2021 - 1.3.2023, According to the hourly wage that the plaintiff proved, according to the following calculation:

2 overtime hours per week * 4.3 weeks * ILS 10 per hour (the value of the difference in overtime pay is based on the plaintiff's calculation regarding the difference in respect of 25% of the value of the hourly wage according to the rate claimed by him (and as stated in paragraph 25 of the statement of claim)* 19 months = ILS 1,634.