Overtime pay and weekly rest pay
- The plaintiff claimed that he worked 7 days a week - Sunday to Thursday for about 8 hours, from 7:00 to 15:00; On Fridays and Saturdays, he worked about 16 hours every day - from 7:00 to 15:00 or 16:00 and then from 4:15 or 17:00 to 23:00 or 24:00. The plaintiff petitions for payment of the differences in respect of overtime pay he worked on Fridays and Saturdays (25%, 50%), as well as weekly rest pay (50%) in the sum of 48,616 according to the salary claimed by him. This is because, according to him, he was paid only regular wages for those hours.
- On the other hand, the defendant claims that the plaintiff was employed 6 days a week, from 07:00 to 15:00, and sometimes in other shifts and overtime. Insofar as the plaintiff was employed on Fridays and Saturdays, the shifts were for 8 hours and an alternative day of rest was given in accordance with the law. Sometimes the plaintiff worked less than the aforesaid format due to his own constraints. The plaintiff received payment for overtime pay and weekly rest as per the law, as indicated by the pay slips.
- After reviewing the arguments, testimonies and evidence, we have reached the conclusion that the claim should be accepted in part.
- According to what was stated in the notice to the employee, the plaintiff was employed 6 days a week, from 7:00 to 17:00.
- The defendant submitted to the file attendance reports that were supposed to be signed by the plaintiff and Mordechai. Mordechai stated that the hours were reported by the plaintiff on the basis of trust and that the excel table (which was submitted to the case) was prepared on the basis of his report and signed by him (at the end of the month, at paragraphs 27-29 of Mordechai's affidavit). According to her, insofar as the plaintiff complained about the salary differences, it was paid to him on the slip in accordance with what he requested, since the defendant relied on him (a review of the pay slips shows that the plaintiff received salary differentials only once - in the month of July 2021 in the sum of ILS 160).
- However, the plaintiff denies and claims that the registration in the pay slips (and consequently also in the attendance reports) does not reflect all the hours he worked - including no records of Friday and Saturday hours, which were paid separately in cash (as stated in paragraphs 6D and 6G of the plaintiff's affidavit).
- A perusal of the reports submitted to the file shows that these are Excel reports in which round hours appear, which casts doubt on their reliability. Moreover, as stated above, in some months (11/2020, 2/2021, 3/2021, and 11/2021) there is a discrepancy between the total hours recorded in the slip and the total hours appearing in the attendance report, which also affects the reliability of the registration.
- However, even if it is said that because of this, the burden of persuasion has shifted to the defendant's shoulders in relation to the quota of hours - 15 hours per week and 60 hours per month (and beyond that it remains on the plaintiff's shoulders), as will be detailed below, we are convinced that the defendant has shouldered the burden, and that the plaintiff's claim should be dismissed for the most part. Let us explain.
- The plaintiff's version regarding the format of the alleged working hours is inconsistent.
- As stated above, according to his version in the statement of claims and in the affidavit, the plaintiff worked 40 hours a week on Sunday-Thursday (8 hours * 5 days) and 32 hours on Fridays and Saturdays (= 16*2). Monthly Restriction - 300 hours (=(4.3 weeks * 40 hours) + (4 Saturdays * 32 hours on Saturday)). However, in his testimony in court, he testified that he worked 250 hours a month and sometimes 300 hours (his testimony at p. 2, paras. 8-12 of Peru). It follows that even according to his approach, he did not work every month in the amount of shifts he claims in the affidavit (300 hours per month), but less than that (250 hours per month).
- Moreover, the plaintiff's testimony in court indicates a different working hours format than stated in the statement of claim and his affidavit. He testified as follows (p. 6, paras. 30-38 of Peru):
"Adv. Rafael: Ok ok, confirm me that you work on Sunday, Monday, Tuesday, during the week from 7am to 3pm.