Labor Dispute (Tel Aviv) 44232-09-22 Woldemariam Mahari – Glossy Cleaning M.B. Clean Ltd. - part 41

Overtime work and weekly rest (6%) -

17,313 ₪ * 6% = 1,038 ₪.

365. In accordance with the above, the plaintiff was entitled to the sum of ILS 4,250 in respect of the compensation component, but in the pay slips ILS 5,650 was paid in lieu of compensation, so that there was no difference left for payment.
366. It should be noted that even if a calculation had to be made according to the amount that should have been deposited in an infiltrators' deposit, there was no difference left for payment. Let us explain.
367. The plaintiff is entitled to payment according to the calculation as follows: (6.5 months * 182 monthly hours on average * ILS 29.12 per hour * 16%) = ILS 5,511. Given that the defendant paid the plaintiff every month in lieu of compensation and pension deposits in the total amount of ILS 9,318, the plaintiff received more and more for this.
368. In a parenthetical article, it should be noted that we have not lost sight of the fact that it was the defendant's duty to deposit these funds in an infiltrators' deposit. However, since we have determined that the coupons are correct, there is no reason to charge the defendant with double payment.
369. For the avoidance of doubt, there is no entitlement to severance pay and therefore the claim for this is dismissed.
370. Therefore , the claim in respect of this component is to be dismissed.

Compensation for Registration Violations

371. Once we have determined that the plaintiff received and signed a notice to the employee and that the pay slips were in good condition and were delivered to him, then the claim for compensation, for example, for failure to give notice to the employee and the claim for compensation for the provision of fictitious pay slips, are liable to be rejected.

Gautom's lawsuit

Employment Period, Circumstances of Termination of Employment and the Issue of Failure to Give Advance Notice

372. In the statement of claim, the plaintiff claimed that in July 2022, after he fell ill and suffered an illness at home, he returned to work for the defendants. Upon his return, he was told by his managers that he was no longer required, and in effect he was immediately fired without giving advance notice or payment in lieu of prior notice.  The plaintiff claims that he is entitled to payment in lieu of advance notice in the amount of ILS 4,144, calculated according to 14 days of notice.
373. The defendant claims that Goitom was the one who left his workplace at the end of the month of May 22 without giving prior notice, when he did not return to work after he claimed he was ill, and therefore the defendant insists on offsetting her damages in this proceeding.

After reviewing the arguments, evidence and testimonies, we reached the following conclusion:

374. According to what is stated in the pay slips and attendance reports that were found to be reliable, the plaintiff began working for the defendant in April 2021 and finished working on June 11, 2022.
375. In his affidavit, the plaintiff reiterated what was stated in the statement of claim and claimed that in July 2022 he fell ill and informed Almog that he was not feeling well and that he would stay at home. After a week of rest, he returned to work, and Almog told him that he no longer needed him and fired him (paragraph 8 of the plaintiff's affidavit).
376. However, in his testimony in court, he gave a new version according to which he was fired because he did not bring a sick certificate, and not because he was no longer needed at work (p. 2, paras.  5-6 of the pro of November 20, 2022).  Not only does this testimony contradict what was stated in his affidavit, but it is inconsistent with the transcription of a voice message by Almog in which Almog asked how he was doing and asked him to update him if he was returning to work (Appendix N5 to Mordechai's affidavit).  The argument that he was required to present a sick certificate as a condition for returning to work is also incorrect and contradicts what was stated in the conversation between him and Mordechai, from which it emerges that the plaintiff did not report to work due to a dispute regarding the payment of salary, and that Mordechai understood that he did not intend to continue working and asked him to work until the end of the month (i.e., to give advance notice).
377. In addition, while in the affidavit the plaintiff claimed that he returned to work after his sick leave and was then fired by Almog, in his testimony in the cross-examination, after he was played the aforesaid recording as well as the additional recording with Mordechai, he changed his version and testified that he did not return to work (p. 3, paras.  12-13 and p.  6, paras.  15-17 of the pro of November 20, 2022).
378. In contrast to Mordechai's version of events, Mordechai's testimony, according to which the defendant contacted the plaintiff after the sick leave ended and that the plaintiff did not return to work, is supported both by his testimony and by the transcripts of the conversation as stated above (Appendix N5 to his affidavit and testimony at pp. 78, paras.  18-20 and at p.  79, paras.  23-29 of the prologue dated September 30, 2024).).
379. His claim that he did not receive medical treatment at the health plan in the absence of medical insurance was also contradicted when the defendant presented a certificate regarding medical insurance that she had prepared for the plaintiff that was valid during the relevant period (Appendix N5 to Mordechai's affidavit).
380. Beyond that, there are other contradictions between the plaintiff's version in the affidavit and his testimony. In the affidavit, he claimed that he had been ill for a week, while in his testimony he testified that he had been ill for two weeks, and then claimed that he had been ill for about a week and three days (p.  1, paras.  26-27 and p.  6, paras.  15-17 of the pro of November 20, 2022).  In addition, in the affidavit he claimed that he fell ill in July 2022 and finished working that month, whereas according to the attendance report, the plaintiff's last work day was on June 10, 2022 (p.  1, paras.  26-27 and p.  6, paras.  15-17 of the pro of November 20, 2022).  ) This means that if the plaintiff was ill, he apparently fell ill in the month of June 22.
381. From the aforesaid, it appears that the plaintiff's version regarding the circumstances of termination of employment is unreliable and that the plaintiff abandoned his employment with the defendant. However, we did not find it appropriate to deduct from the funds to which he is entitled advance notice fees despite the fact that it was not given.  This is because the defendant did not deduct the advance notice fee in real time and did not insist on this right at the time, but only after the lawsuit was filed, and therefore it should be considered as having waived this right.

Overtime pay

382. The parties agree that the plaintiff worked six days a week, Sunday through Friday, from 7:00 a.m. to 3:00 p.m., which is an 8-hour shift (except for the defendant's claim that sometimes the plaintiff worked less than this format as detailed in the pay slips).
383. However, while the defendant claims that his employment was in accordance with the law and that he was paid overtime in accordance with his entitlement and according to the minimum wage. The plaintiff claims that he was not paid at all for overtime and that he is entitled to overtime pay in the sum of ILS 5,549, calculated according to two additional hours on Friday worth 125% and three and a half hours of overtime on Friday worth 150% (after deducting an hour off on an 8-hour workday) according to the hourly rate claimed by him.
384. As will be detailed below, the law of the claim is to be accepted in part.
385. In the notice to the employee that Gautom confirmed that he had signed, it was stated that the work format was 6 days a week, between 7:00 and 15:00, as was also stated in the statement of claim, in the plaintiff's affidavit and in his testimony in court (see paragraph 14 of the statement of claim; paragraph 7b of the plaintiff's affidavit and his testimony on p. 3, paras.  24-30 of the pro of November 20, 2022).The plaintiff also testified that he had a half-hour break during which he could do as he wished and for which he was paid wages (p.  3, paras.  24-30 of the proc.  of November 20, 2022).
386. The format of the employment as aforesaid also emerges from the attendance reports (both manual and electronic) submitted to the file. These reports show that with the exception of a few cases in which he worked on Saturdays (for example, in the months of 6/21 and 7/21), the plaintiff worked on Sundays and Fridays between 7:00 and 15:00 (in a few cases, the plaintiff left earlier or later).
387. The total hours reported on the pay slips also correspond to the total hours reported in the attendance reports, with the exception of the month of March 22. For this month there are two attendance reports - an Excel report and a report with reporting by location (in the app) in which the number of hours is 6 hours less than the number of hours reported in the Excel report and on the slip.  However, the plaintiff confirmed in his testimony that there were problems with signing through the app.  The plaintiff confirmed in his testimony that the reporting through the app was in the last two or three months of his employment and that there were problems with reporting through the app.  According to him, there was no reception and they would have informed Mordechai about it.  He also testified that in the last month of his work, he reported using the attendance clock that was placed in the premises of defendant 2 (p.  2, paras.  7-32 of the pro of November 20, 2022).  The plaintiff was not deprived when he received payment on the pay slip for a greater number of hours than the number of hours according to the electronic report.  The aforesaid is consistent with the defendant's version that in cases where there was a dispute regarding the number of hours, due to the lack of cooperation in signing through the application, the defendant would have paid as claimed by the employee.
388. From the above, it appears that the attendance reports are reliable and reflect the plaintiff's working hours. In his affidavit, the plaintiff also stated that the total hours that appear on the pay slips are correct, and as stated, there is a correspondence between the registration in the pay slips and the registration in the attendance reports.
389. In his testimony in court, he contradicted what he said, "Every month I was missing hours. In general, if we had not signed, our hours would have changed, each time we would have been given fewer hours" (  3, paras.  34-36 of Pro.  of November 20, 2022).  However, when confronted with his statement in the affidavit regarding the reliability of the working hours on the slip, he replied: "Yes, this is exactly what we are paid - 216, 208 (refers to other coupons)" (p.  4, paras.  27-28 of the prologue of November 20, 2022), meaning that he testified that the hours specified in the slips were correct.
390. Although we have reached the conclusion that the attendance reports are reliable as well as the pay slips, we found that there were errors in the classification and quantification of the plaintiff's working hours - regular and additional hours (on weekdays and Saturdays), while the defendant sometimes calculated some of the overtime hours as regular or incomplete hours according to the correct value of the hour (125, 150%, 175% and 200%). As detailed in the table below, the correct classification of the plaintiff's working hours is as follows:

391. In accordance with the above table, the plaintiff was entitled to salary differentials as follows:

392. On the basis of the above, we determine that Goitom is entitled to differences in respect of overtime work and weekly rest, in the sum of ILS 1,466.

Convalescence Pay

393. Since 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, should be rejected, there is no room to accept the plaintiff's argument that the convalescence pay paid as stated in the pay slips should not be taken into account. However, contrary to the defendant's claim, there are differences in payment, and we will elaborate.
394. For the period from 4/2021 - 10.6.2022 (full-time), the plaintiff was entitled to 8.36 convalescence days (= 14.33/12 months * 7 days) * ILS 423 per day = ILS 3,536. In practice, he was paid ILS 3,274 in the pay slips for the aforementioned period.  Therefore, the plaintiff is entitled to a difference of ILS 262.

Redemption of annual leave

395. The plaintiff petitions for payment of vacation redemption, claiming that during the period of employment he did not take paid vacation and even at the end of the employment he was not paid vacation, based on the following calculation - 18 days * 8 hours * ILS 37 = ILS 5,328.
396. On the other hand, the defendant claims that it has paid the sum of ILS 932 in this component, while the balance of 10 days of vacation that it was supposed to redeem to him at the end of employment was not paid to him since it insists on its right to offset for failure to give advance notice.
397. Since the plaintiff worked for 14.33 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 must be calculated as follows:

For the months of 4/2021 - 30.12.2021, in which the plaintiff actually worked for 216 days, he is entitled to a redemption of 216/240 * 14 vacation days = 12.6 vacation days, and after deducting partial days - 12 vacation days.