The witness, Mr. Sagaber: 07:00 to 16:00, Friday 07:00 to 22:00, Saturday 06:00 to 13:00, 12:00.
Adv. Rafael: Ok, so you say in the affidavit from 7:00 to 15:00 is that not true?
The witness, Mr. Sagaber: He told me, 'You're a regular worker from 7:00 A.M. to 3:00 P.M.,' he told me, but most of the time I leave at 3:00 P.M. and 4:00 P.M. He told me 'until 3:00 p.m.,' but sometimes there's too much work, you stay until 4:00 p.m." (emphasis added)
- In other words, with regard to Fridays - contrary to what is stated in his affidavit that he worked on Fridays until 23:00 or 24:00, in his testimony in court he testified that he worked only until 10:00 p.m. Moreover, in his testimony in court, he claimed that he worked on Fridays consecutively (from 7:00 a.m. to 10:00 p.m.), while in his affidavit he noted that there was a break of an hour-an hour and a quarter between shifts in the morning and evening.
- Moreover, with regard to Saturdays , the plaintiff testified in court that on Shabbat he worked between 6:00 and 12:00 or 13:00, antitrust - 6 or 7 hours respectively, and not as he stated that he worked on Shabbat between 14 and 16 hours (from 7:00 - 15:00 or 16:00 and then from 16:15 or 17:00 to 23:00 or 24:00). This is a significant discrepancy in the plaintiff's version regarding the number of hours he worked. In practice, the plaintiff testifies that on Saturdays he worked only one shift (the morning shift).
- Moreover, and as stated above, the plaintiff testified that he used to record his working hours every month - on a note or on the phone, but he did not present this record as evidence claiming that he had lost the phone. The plaintiff also requested an order to provide a location report, but later did not insist on this.
- Moreover, contrary to the plaintiff's claim that the pay slips do not appear on the Shabbat hours at all, a review of the reports and the pay slips shows that salary was also paid for Shabbat hours.
- In addition to the aforesaid, although the hours in the report appear as round hours, it can be seen that this is not a fixed record of fixed hours, but rather the hours of shifts vary in part (for example, in October 2020 it was noted that the plaintiff worked on Fridays between 7:00 and 13:00 instead of 7:00 - 15:00; in December 2020 it was noted that in some shifts the plaintiff worked from 7:00 to 16:00 (as the plaintiff himself claimed) and on the fast of the 10th of Tevet he worked between 7:00 and 15:30, etc.). This indicates that this is not an automatic filling of the hours and shifts.
- According to these reports, the plaintiff worked, at most, 6 days a week in morning shifts (some of them on Saturdays). For the most part, the plaintiff worked between 7:00 - 15:00 or 7:00 - 16:00 (and sometimes also worked until later hours or less). In exceptional cases, the plaintiff worked on Saturdays or in two shifts on the same day (see, for example, the report for the month of February 2021).
- The plaintiff confirmed that he received the pay slips every month and therefore could have argued in relation to the records of the hours on the slip and did not do so, and it was not proven otherwise.
- However, it should be noted that even if we did not believe that the plaintiff's factual version regarding the format of his work days and hours should be accepted, as the defendant herself admitted in the summaries on her behalf, there are discrepancies between some of the entries in the reports and the entries in the pay slips, which attest to the fact that the plaintiff did not receive payment lawfully for all the hours reported in the attendance reports, and therefore he is entitled to differences in respect thereof (paragraph 132 of the defendant's summaries). For example:
In October 2020 - the plaintiff worked 6 days - of which 5 days were from 7:00 - 15:00 and on Friday from 07:00 - 13:00, i.e. - every week he worked for 46 hours. Beyond 42 hours per week, the plaintiff was entitled to overtime pay of 125% for the first two hours and 150% for the additional two hours, antitrust - 8 hours worth 125% and 8 hours worth 150%. However, in the pay slip, he was paid for 18 overtime hours worth 125%.