Labor Dispute (Tel Aviv) 44232-09-22 Woldemariam Mahari – Glossy Cleaning M.B. Clean Ltd. - part 7

As to the deposits in the study fund, the defendant admits that the payments in respect of the study fund were 0.5% higher than what should have been deposited (i.e., in the slip, the plaintiff was paid 8% instead of 7.5%).  However, Mordechai claimed in the affidavit that this was due to limitations in the salary software that did not allow the insertion of percentages, and therefore the plaintiff received 0.5% in excess (paragraph 43 of Mordechai's affidavit in Mehri's claim).  A perusal of the plaintiff's (as well as of the other plaintiffs) shows that in all of them a fixed formula regarding the payment of 8%, which supports the defendant's claim that this was not done in order to conceal the true amount of the salary or to inflate the paycheck, but only for technical reasons.

42. In the margins, it should also be noted that we were not persuaded, nor was it even proven by the plaintiff that the salary paid in his wife's name was for work he performed. The plaintiff admitted in one of the conversations with Mordechai that his wife worked (Appendix C to the affidavit from Hari, where it was noted: "Almog: We bring you and your wife ILS 20,000 a month.  Mahri: ...  Okay, she works 8 hours, I work 20 times as many hours at ").  The defendant proved that the plaintiff's wife was employed by her in cleaning work and that she was placed, inter alia, in the "Beit Midrash" (apparently referring to the yeshiva) as well as in the community center (Appendices N4-N5 to Mordechai's affidavit in Mehri's file, a transcript of a conversation with Mrs. Snait (Mahri's wife) where she stated that she worked at the "Beit Midrash" and the pay slips produced for her by the defendant and the Mordechai Testimony at p.    paras.  38-39 and p.  51, paras.  1-37 of Peru).  Moreover, we are not persuaded by the plaintiff's claim that the recording of the hours indicated in the text message from October 2021 (which was presented by him in order to prove his claim regarding a discrepancy between his report and the recording in the attendance report) does not include the hours his wife worked while she was employed by the defendant at the time.  But even if the plaintiff's claim that his wife was not employed by the defendant would have been accepted - in any case, this does not change the conclusion regarding the amount of the plaintiff's salary.
43. Before examining the plaintiff's entitlement to the various rights in respect of the periods of his employment in the factory, we would like to note that in light of the ruling of the National Court, the rule is that the employees should not be awarded sums in net values (in labor appeal 3393-02-17 - G.M. Maayan Alfayim (07) in a tax appeal (24.06.2018):

"The usual way to determine wages is in the 'gross' amount, but the parties may determine that the employee will receive 'net' payment; As for the method of realizing an agreement in net values in judicial instances, that is, whether the claim can be filed in net values or whether it is required to be filed in gross values.  The starting point is that monetary compensation should be awarded in gross terMs. At least in claims in which the amount of the monthly salary is high and therefore there is significant practical significance to the tax burden, as a rule, there is no room to extend judicial relief in net terms."

44. After all, he did not present a breakdown of the method of calculating the gross salary, since he did not attach a breakdown of his personal data as well as the amount of tax required to be paid for the alleged salary. Therefore, for the purposes of calculating his entitlement, we will refer to the payments requested by him in gross values.
45. As for the Helizga, according to the Hillizga, his hourly wage was initially ILS 32 per hour, and then ILS 35 per hour until the date of his termination of employment (paragraph 13 of the statement of claim, where it was not stated that a net salary was agreed upon, and this fact is mentioned in his affidavit). He claimed that his salary was based on calculating the actual hours worked multiplied by his hourly wage, and that was all he was paid.
46. Regarding the manner in which the salary was paid, Hilizge claimed in the statement of claim that he received the salary by bank transfer and that every month there were errors in the calculation of the salary and that he was paid in cash by Mordechai between ILS 3,000 and ILS 4,000 (paragraph 13 of the statement of claim, and see the amendment to the statement of claim at the hearing of January 1, 2024 (p. 1 of the lawsuit).
47. On the other hand, according to the defendant's approach, his hourly wage was a minimum wage (ILS 29.12 per hour) in accordance with the subscription in the pay slips and the notice to the employee, to which all the rights were added, including a study fund and monthly convalescence pay from the first day (paragraphs 10 and 14 of the statement of defense as well as paragraphs 9 and 12 of Mordechai's affidavit), and the pay slips reflect the salary paid to him by bank transfer.
48. As will be detailed below, the law of the Hillizge's claims regarding the amount of the salary is to be rejected.
49. The defendant attached to the affidavit the employment agreement, which she claimed was signed by the plaintiff and Mordechai (paragraph 9 of Mordechai's affidavit and Appendix N2 that was attached to that affidavit). This agreement is also drafted in the Tigrinian language understood by the plaintiff (as emerged from his testimony -   7, paras.  2-34 of Peru), although no translation of the agreement was attached, it can be seen that it contains a minimum wage of ILS 29.12 per hour.
50. The plaintiff denied that he had received or signed a notice to the employee. In addition, in his affidavit he denied that he had signed the agreement that the defendant had attached to Mordechai's affidavit (and for the purpose of proof, he also attached a sample of his signature - Appendix B to his affidavit).  In his testimony in court, he repeatedly denied that he had accepted the agreement that was attached to Mordechai's affidavit (in his testimony at p.  7, paras.  17-34 of Peru).  The summaries noted that "perhaps they were indeed signed by the workers, but the plaintiffs did not know and their significance was not explained to them...".  This contradiction raises a difficulty.
51. According to the Kaplan and Levy ruling, in the event that an employee claims that it is not his signature, "the employer has the burden of proving that it is indeed the employee's signature, and the employee does not have the burden of proving that his signature is forged. Accordingly, if it is not possible to determine whether the signature was forged or not, the document should be viewed as a document without a signature." At the hearing, the plaintiff was asked to write in his own handwriting the words Mordechai and Almog (as stated in Exhibit N/1), but since it is a foreign language, we do not have the professional tools, without an expert opinion, to determine that he was the one who filled in the missing words in the employment agreement in his own handwriting.
52. However, we were of the opinion that Mordechai's testimony that the plaintiff signed the notice to the employee before he began to work (paragraph 9 of Mordechai's affidavit and the notice to the employee to which he signed - Appendix N2 to his affidavit) was reliable, and therefore he meets the definition of case law regarding a witness, in contrast to the plaintiff's testimony, which left an unreliable impression on us, as will be detailed below. Mordechai testified that there is a "procedure" according to which the workers first come, see the work, and then give them an employment agreement and the employee signs it in front of him (  24 of the proc.  of September 30, 2024).  Indeed, an agreement signed by him was submitted to the file in which details were filled in handwritten in the Tigryan language.  Mordechai testified that he took care of the employment agreement and its translation into Tigray when he established the defendant in order to work in an orderly manner (p.  24 of the prologue of September 30, 2024, and the defendant also submitted a certificate regarding the translation of the agreement into the Tigri language dated August 28, 2020).  This means that the burden of persuasion remains on the plaintiff's shoulders.  More than necessary, even if there was room to shift the burden of persuasion to the defendant's shoulders, due to hostile balances, we are of the opinion that the defendant lifted it and that the plaintiff's salary was the minimum wage as stated in the pay slips.  Let us explain.
53. There are contradictions in the plaintiff's version - while in the statement of claim he claimed that his salary was ILS 32 and then ILS 35, in his affidavit and in his testimony in court he claimed that the salary reached ILS 37 (paragraph 13 of the statement of claim as opposed to what was stated in paragraph 6f of his affidavit and his testimony in court at pp. 5, paras.  32-34 of Peru).
54. In his testimony, he further noted that the initial payment of ILS 32 was made over a period of 3 months - something that was not mentioned in the statement of claim or in the affidavit, without any explanation despite the importance of this figure.
55. In addition, the plaintiff's version regarding the nature of the payment in cash was also inconsistent - in the statement of claim he claimed that the cash was paid due to errors in calculating the salary, while in his affidavit and testimony in court he claimed that the payment in cash was for work on Fridays and Saturdays (paragraph 13 of the statement of claim as opposed to what is stated in paragraph 6H of his affidavit and his testimony in court on p. 2, paras.  15-23 of Peru).
56. The division of the plaintiff's net salary in the slip (which is indisputable that the plaintiff received it by bank transfer - see the plaintiff's testimony at p. 2, paras.  21-24 of Peru) by the number of hours that the plaintiff worked as stated in the slip (regular, overtime and Saturday), leads to an hourly wage, as follows:

57. The details in the above table are inconsistent with the plaintiff's version. The plaintiff testified that "for 3 months he paid me 32, then 35, after that 37" - but from the table as aforesaid, it appears that an hourly wage of ILS 32 is obtained from the division of the total hours by the total (net) salary for 5 months , and in the rest of the months there is no match between his version that he received ILS 35 and later ILS 37 and the hourly wage received from the distribution of the net wage in the total number of hours recorded on the slip.
58. In his affidavit, the plaintiff claimed that the payment in cash was only for his working hours on Fridays and Saturdays. According to this version, insofar as the payment on the pay slip reflects only the hours worked during the week (not including Friday and Saturday), there should have been a match between the hourly wage received from the net wage distribution of the total hours recorded on the pay slip and the hourly wage that he claiMs. However, as can be seen from the above, in most months (from 2/21 to 11/21) a wage of less than ILS 35 or ILS 37 per hour is received.
59. His version regarding the amount of the cash payment was also inconsistent. In the statement of claim, he claimed that he received between ILS 3,000 and ILS 4,000 in cash, while in his affidavit he claimed that he received between ILS 3,500 and ILS 4,500 in cash (paragraph 6H of his affidavit and his testimony in court at p.  6, paras.  1-2 of Peru).In his testimony in court, he reiterated that he earned between ILS 3,000 and ILS 4,000, as stated there (p.  7, paras.  1-2 of Peru):

"The witness, Mr. Sagaber: If we work 4 Saturdays a month, we would get 4,000 shekels, and sometimes we work 3,000 or 3,500 shekels a month..