Labor Dispute (Tel Aviv) 44232-09-22 Woldemariam Mahari – Glossy Cleaning M.B. Clean Ltd. - part 39

339. Therefore, the law of the claim for overtime pay is to be dismissed.

Convalescence Pay

340. As stated above, we have determined that the plaintiff's version, according to which the entry in the pay slips reflects only the multiplication of the hours he worked with the hourly wage claimed by him, is incorrect, and therefore his argument that the payment on the pay slips for convalescence pay should not be taken into account is liable to be rejected.
341. For the period from 4/2021 - 17.10.2021 (full-time), the plaintiff was entitled to 3.8 convalescence days (= 7 days * 6.5/12 months) * ILS 423 per day = ILS 1,604. In fact, he was paid ILS 1,644 in the pay slips for the aforementioned period.  Hence, the defendant paid the plaintiff for this component beyond what was required and the claim should be dismissed.

Redemption of vacation days

342. The plaintiff petitions for payment of vacation redemption, claiming that during the period of employment he did not take paid leave and at the end of the employment he was not paid vacation, based on the following calculation - 7 days * 8 hours * 40 ILS = ILS 2,239.99 (paragraphs 31-33 of the statement of claim).
343. On the other hand, the defendant claims that the plaintiff was paid vacation redemption upon termination of employment in accordance with the actual working days and the formula prescribed by law, and therefore there are no differences payable (paragraph 37 of the statement of defense).

After reviewing the arguments of the parties, the testimonies and the evidence, we have reached the conclusion that the lawsuit in respect of this component should be accepted in part.

344. Since the plaintiff worked for 6.5 months, his entitlement must be calculated according to section 3(c) of the Annual Leave Law, taking into account his seniority and the actual number of days worked. Therefore, the number of vacation days for which the plaintiff is entitled to redemption should be calculated as follows: For the months of 4/2021 - 17.10.2021, in which the plaintiff actually worked for 163 days, he is entitled to redemption of 163/240 * 14 vacation days = 9.5 vacation days, and after deducting partial days - 9 vacation days.
345. Since the plaintiff worked full-time and beyond, the plaintiff was entitled to vacation pay in the sum of ILS 232.96 per day (= 8 hours * ILS 29.12 per hour), and multiplied by the vacation days -9 days, he was entitled to vacation redemption in the sum of ILS 2,096.64.
346. In practice, he was paid vacation redemption in the sum of ILS 1,570 as part of his last salary.
347. On the basis of the above, the plaintiff is entitled to a difference in respect of redemption of annual leave in the sum of ILS 526.64 (= ILS 1,570 - ILS 2,096.64).

Holiday Fees and Holiday Allowance

348. In the statement of claim, the plaintiff petitioned for payment for 5 holiday days at a rate of holiday pay (100%) (in the sum of ILS 1,600) and for holidays (250%) for 5 holidays (in the sum of ILS 4,000). The plaintiff claimed that the registration in the pay slips regarding payment for holiday pay was fictitious and therefore he was entitled to receive this remedy, but did not specify for which holidays such relief was sued.  However, to his affidavit he attached a table of holidays and in the summaries he detailed the days for which he petitioned to receive payment.
349. The defendant claimed that she had paid him lawfully and that there were no differences for payment of holiday payments (paragraph 28 of the statement of defense).
350. As will be detailed below, the claim should be accepted in part.
351. The plaintiff was not entitled to holiday pay for the first three months of his employment, i.e., before July 1, 2021. In 2021, the High Holidays took place in September 2021, as detailed below:

352. Therefore, the plaintiff is entitled in 2021 for 2 days of holiday in which he did not work at a 100% rate in the sum of ILS 465.92 (= 2 days * 8 hours * ILS 29.12 per hour * 100%).
353. In relation to the holidays in which the plaintiff worked, he was entitled, at a minimum, to an hourly rate of 250%. Contrary to what is claimed in the defendant's summaries , the burden of proving that the plaintiff worked out of choice during the holidays rests with her, and she did not meet it (Labor Appeal 23333-09-16 Salim Walid-Adir Habira in Tax Appeal [not yet published] (February 8, 2018); Labor Appeal 249/09 Michael Pinsco - Saar Security, Guard and Services Jerusalem in a Tax Appeal [published in Nevo] (November 14, 2011)).
354. On September 7, 2021 and September 8, 2021 (Rosh Hashanah), the plaintiff worked, as stated in the attendance report, for 12 hours every day, and on September 28, 2021 (Simchat Torah), the plaintiff worked 9 hours - therefore, he was entitled to holiday pay and holiday work, including overtime pay on the holiday. Therefore, the plaintiff was entitled for these days to holiday fees and holidays in the sum of ILS 2,497.04 = ((8 hours + 8 hours + 8 hours) * ILS 29.12 per hour * 250%) + (5 hours * ILS 29.12 per hour * 275%) + (4 hours * ILS 29.12 per hour * 300%)).
355. However, in the calculation we made as stated above for overtime pay, we calculated the compensation to which the plaintiff was entitled for his work on the holidays (150% for the first 8 hours, 175% for 2 overtime hours and 200% for the rest of the hours beyond that) after deducting what was paid in the slip that month. Therefore, in order to avoid double compensation, within the framework of this component, only the payment for the holidays (100%) for the aforementioned days must be completed.  Therefore, the plaintiff is entitled for the 3 days of holiday in which he worked for differences in the sum of ILS 698.88 (= 3 days * 8 hours * ILS 29.12 per hour * 100%).
356. In total, the plaintiff is entitled to holiday pay during the employment period in the amount of ILS 1,164.8.

Payment in lieu of deposits to a study fund

357. The plaintiff claims that the defendant did not pay for a study fund according to his hourly wage as it was, and therefore she must compensate him with differences in the sum of ILS 3,194. On the other hand, the defendant claims that it paid the plaintiff the full payments due to him according to the minimum wage.
358. As stated above, we have determined that the registration in the pay slips reflects the plaintiff's salary. As stated in section 10 of the Cleaning Industry Expansion Order, the plaintiff was entitled to deposits of 7.5% of his salary as well as the convalescence pay.
359. Accordingly, the plaintiff was entitled to a change of study fund according to the following calculation:

6 months * 182 hours (full-time) * 29.12 ILS per hour * 7.5% = 2,385 ILS.