Labor Dispute (Tel Aviv) 44232-09-22 Woldemariam Mahari – Glossy Cleaning M.B. Clean Ltd. - part 9

In his testimony, the court testified that he worked 250 hours a month and sometimes 300 hours (his testimony at p.  2, paras.  8-12 of Peru).  In other words, while according to his version in his affidavit he worked 300 hours a month in court, he testified that he worked even to a smaller extent (250 hours per month).

Moreover, in his testimony, the plaintiff testified that he worked on Saturdays between 6:00 and 12:00 or 13:00, antitrust - 6 or 7 hours respectively, and not as he declared that he worked between 14 and 16 hours on Saturdays (from 7:00 - 15:00 or 16:00 and then from 16:15 or 17:00 to 23:00 or 24:00, his testimony on p.  6, paras.  30-38 of Peru).

The inconsistency in his version as described above has implications for the degree of reliability that we thought should also be attributed to his version in relation to the alleged hourly wage, in view of the close connection between the matters.

62. In addition, the plaintiff testified that he used to record his working hours every month - on a note or on the phone, but did not present the record as evidence on the grounds that he had lost the phone (his testimony at p. 8, paras.  32-39 of Peru).  In addition, the plaintiff initially requested an order to provide a location report, but later did not insist on this.  In the absence of these documents, it is not possible to determine, as he claims, that he worked far beyond what was stated in the pay slips (and attendance reports) and that the payment for Friday-Saturday was not included in the payment made according to what was stated in the pay slips, but was paid in addition and separately in cash.
63. The plaintiff's testimony that Mordechai promised to pay him ILS 43 for Shabbat hours (but in fact paid him at a regular hourly rate) is more consistent with the defendant's claim that the plaintiff's wage was a minimum wage (ILS 29.12) than with the plaintiff's claim regarding the amount of his hourly wage (since ILS 29.12 * 150% = ILS 43.68).
64. Moreover, as stated above, we did not accept the plaintiff's arguments that there was an improper manner in the manner of payment of the convalescence pay in the pay slips, but rather it was proven that the payment was made in accordance with the expansion order in the cleaning industry. In addition, we did not accept the argument that the payment in respect of a study fund in the amount of 8% of the salary and convalescence pay (under 7.5% of the salary and convalescence pay), due to a technical interest in the defendant's salary software, indicates that the coupons are not authentic.  The payments for compensation and pension in the pay slips were also made in short (and in some months they were not paid at all) and therefore it cannot be said that they were made in order to inflate the salary (so that it would reach the level of the hourly rate claimed by the plaintiff) or in order to conceal the true hourly rate.
65. We have not lost sight of the fact that in some months there is a discrepancy between the number of hours recorded in the slip and the number of hours reported in the attendance report (months 11/2020, 2/2021, 3/2021 and 11/2021) and that the correct compensation was not always paid for the hours reported in the attendance report (as will be detailed in the chapter dealing with overtime pay). However, as stated in the ruling of the National Court, "between the lack of propriety and fictitious - based on the determination that the components of the social rights specified in the slip are ostensibly and in fact are disguised wages - there is a long way to go" (Kaplan and Levy) ruling).  In other words, not every defect in the pay slip negates its evidentiary power.  Each case must be examined according to its circumstances.  There may be cases in which the intensity of the defects will negate the value of the slip as prima facie evidence, and on the other hand, cases in which the defects are of a focused scope or of reduced intensity and they do not take away their evidentiary power from the other components (as stated in paragraph 51 of the judgment in the Kaplan v.  Levy case) - as we thought was the case at hand.
66. In this case, no evidence was presented attesting to a different agreement with Hilizge regarding the amount of his salary, and his entire claim is based on his testimony (which was found to be unreliable) and the slips (whose analysis was found to support the defendant's claims). Contrary to the plaintiffs' claims, we do not believe that evidence submitted in the case of any of the other plaintiffs (including transcription of conversations with Mordechai) should be inferred to attest to the fact that the agreement with the Helizge regarding the hourly rate was identical.
67. Therefore, even though we were of the opinion that it was proven that the plaintiff had accepted the employment agreement, and therefore the burden of persuasion was on his shoulders - and he did not lift it, his arguments should be rejected. Beyond what is required, we are of the opinion that even if the burden of persuasion had been shifted to the defendant's shoulders, in view of the tapestry of evidence as described above, she lifted it.  Therefore, his rights will be examined in accordance with the minimum wage rate as set out in the employment agreement between the parties and as stated in the plaintiff's pay slips.
68. As for Habtom - in the statement of claim, Habtom claims that his hourly wage was initially ILS 38 per hour, and after about three months his salary increased to ILS 40 per hour, until the end of his employment (in the statement of claim he did not mention whether it was net or gross wages, but in his affidavit he clarified that the reference was to net wages, paragraph 13 of the statement of claim).
69. The plaintiff claims that his salary was calculated as multiplying his actual working hours by his hourly salary, and that this is the only payment he received for his regular and overtime work hours. According to him, he never agreed to pay a total salary and the registration in the pay slips is not reliable (paragraph 26 of the statement of claim).  Habatum further argues that the salary was paid by bank transfer and that the differences between the amount paid in the slip and his full wages were paid in cash (paragraph 13 of the statement of claim).
70. The defendant denies the plaintiff's claims and claims that his hourly wage was the minimum wage prescribed by law, i.e., ILS 29.12 per hour, and that the rest of the social rights were paid to him every month (paragraphs 11 and 14 of the statement of defense). The defendant emphasizes that the pay slips faithfully reflect the salary paid to the plaintiff by bank transfer, and that no cash payments were made to the plaintiff (paragraphs 14-16 of the statement of defense).
71. After reviewing the arguments, evidence and testimonies, we have reached the conclusion that the law of the Batum claim regarding the amount of salary is to be rejected.
72. The plaintiff claimed in the statement of claim as well as in his affidavit that the defendant had breached her obligation to give him notice of the terms of his employment in accordance with the law, and that he had not signed an employment contract or received notice in accordance with the law (paragraphs 13 and 38 of the statement of claim and paragraph 7D of his affidavit). However, a signed employment agreement was submitted to the case in the Tigrin language, in which it was stated that the plaintiff's hourly wage would be ILS 29.12 (Appendix N2 to Mordechai's affidavit in this case).  The file was also submitted as Appendix N3 to Mordechai's affidavit, a translation of the text of the notice to the employee).
73. In contrast to his original version, when he was presented with the employment agreement that was attached to Mordechai's affidavit in his testimony in court, the plaintiff confirmed that he had signed it but claimed that "because I don't know any language, he signed me" ( 3 of the transcript of May 31, 2023, paras.  28-32; See also p.  3, paras.  33-35 and p.  4, paras.  1-9 of Pro.  of May 31, 2023).  From the aforesaid it appears that the plaintiff changed his version.  His claim that he did not know what Dina had signed was to be rejected.  First, the labor agreement was in the Tigrayan language, which is the language he controls.  Second, in his testimony in the cross-examination, he testified that he was the one who filled in (in his own handwriting) the missing details in the employment agreement (p.  7, paras.  3-10 of the pro of the hearing of May 31, 2023).  This testimony is inconsistent with his claim that he did not understand what he had signed (and it also contradicts his original testimony that he did not receive notice to the employee and did not sign it).
74. In view of the above, we determine that the burden of proof to prove the plaintiff's employment conditions, including the amount of his salary, remains on his As detailed above and detailed below, the plaintiff's version as presented in his affidavit and testimony is replete with contradictions and unreliable, and at least has not been proven, which justifies the rejection of his claiMs.
75. It should also be noted that in his affidavit, the plaintiff contradicted himself. At first he declared that his salary was ILS 38 net and later ILS 40 net per hour (paragraph 7C of his affidavit).  However, he later declared that "apart from a salary of ILS 35 net and then ILS 38 net, I was not paid for my working hours...(paragraph 15 of the plaintiff's affidavit).  This contradiction, in relation to the amount of salary, attests to a material inconsistency already at the stage of filing the affidavit.  When the defendant referred him to the aforesaid, in the cross-examination the plaintiff denied that he received ILS 35 per hour and testified that "we had an agreement only according to 38" (  5, paras.  24-26 of the pro of the hearing of May 31, 2023).  In doing so, the plaintiff sought to make some improvements without filing a request to amend the affidavit.
76. In addition, an analysis of the pay slips does not support the plaintiff's version. Contrary to the plaintiff's claim in the statement of claim that his hourly wage was ILS 38 or ILS 40 net per hour, the division of the net wage in the total number of hours specified in the slip presents a different picture as detailed in the table below:

77. From the above table it can be seen that the average (net) hourly wage ranges from ILS 31.61 to ILS 40.21, as opposed to a fixed wage of ILS 38 or ILS 40, as claimed by the plaintiff.
78. A comparison between the calculations made in the statement of claim and the plaintiff's version in his testimony also attests to a lack of correspondence - while in the statement of claim it was noted that the plaintiff earned a sum of ILS 40 per hour for three months (as is evident from the calculation of the differences in respect of the deposit of infiltrators (paragraph 22 of the statement of claim; and also see what is stated in paragraph 24C of the plaintiffs' summaries). In his testimony in court, he testified that his salary was increased to ILS 40 for about two months (p.  3, paras.  26-27 and p.  6, paras.  10-11 of the prologue of May 31, 2023) and in some of the components he claimed only at ILS 38 per hour (as stated in the calculation of overtime pay (paragraph 27 of the statement of claim) and the differences in respect of the exchange of a study fund (paragraph 37 of the statement of claim).
79. There is no dispute that what was stated in the pay slip was transferred to his bank account, and the plaintiff also declared that the recording of the total hours in the pay slips is correct ( paragraph 7G of the plaintiff's affidavit). In his testimony in court, he initially claimed that the recording of the hours on the pay slip was incorrect, but later he testified that he was the one who reported the number of hours and that the hours recorded on the pay slips were correct (p.  3, paras.  9-16 and p.  6, paras.  6-8 of the hearing of May 31, 2023).  Therefore, it cannot be argued that the discrepancy between the hourly wage claimed by him and the wage obtained from the division of the net total wage in the total number of hours recorded in the slip stems from an incorrect recording of hours.
80. As for his version regarding the payment in cash, in his affidavit, the plaintiff claimed that every month there were errors in the calculation of the salary, and therefore he received a payment in cash that was intended to cover this. However, if the plaintiff did receive an additional amount in cash - beyond the amount stated on the pay slip (which was transferred by bank transfer), then his hourly wage should have been higher than ILS 38 or ILS 40 per hour (contrary to what he claimed in the statement of claim).  Likewise, there is no dispute that the plaintiff received the pay slips and did not raise any claim regarding what was stated therein, and unfortunately this was not proven (p.  3, paras.  23-24 and p.  6, paras.  21-23 of the pro of the hearing of May 31, 2023).
81. It should also be noted that in his testimony in court, the plaintiff claimed that he was not paid travel expenses ( 3, paras.  19-22 and p.  6, paras.  24-25 of the hearing of 31.05.23), however , an examination of the pay slips shows that he was paid for this component and the plaintiff did not even file a claim for it.
82. Moreover, as stated above, we did not accept his argument that there was an improper manner in the manner in which the convalescence pay was paid in the pay slips. On the contrary, it has been proven that the payment was made in accordance with what is stated in the expansion order in the cleaning industry.
83. In addition, we did not accept the argument that the payment in respect of a study fund in the amount of 8% of the salary and convalescence pay (under 7.5% of the salary and convalescence pay), due to a technical interest in the defendant's salary software, indicates that the coupons are not authentic.
84. With regard to payments for compensation and pension deposits in the pay slips, an examination of the pay slips shows that the defendant found that she had paid him overpayment for this and in the last month of his employment (10/21) she had deducted him (ILS 1,282) for "payment of overpension". This figure contradicts the plaintiff's claim that the registration of a pension allowance and a compensation allowance in the pay slips is intended to inflate the salary or to conceal the real salary (with regard to the reasons for the payment of pension allowance and compensation in the slip under deposit of infiltrators, see below in the chapter dealing with entitlement to differences in respect thereof).
85. Without derogating from the above, it should be noted that we have not lost sight of the fact that in some months there are double attendance reports or in some months there is a discrepancy between the number of hours recorded in the slip and the number of hours reported in the attendance reports. However, as will be detailed below, these deficiencies stem from the fact that the plaintiff did not always stamp the attendance clock at the entrance and exit, and the defendant was forced to pay for working hours without lawful reporting by the plaintiff.  Moreover, we have also not lost sight of the fact that the correct compensation was not always paid for the hours reported in the attendance report (as will be detailed in the chapter dealing with overtime pay).  However, as stated above, it appears that these are calculation errors that do not stem from a lack of hours or an attempt to conceal the real salary, and as will be detailed below, the plaintiff received full payment for this.  As stated above, not every defect in the pay slip negates its evidentiary power.  Each case must be examined according to its circumstances, and in this case the defects are of reduced intensity, and therefore they do not take away their evidentiary power from the other components.
86. Moreover, in this case, no evidence was presented that indicates a different agreement with Habatum regarding the amount of his salary, and his entire claim is based on his testimony (which was found to be unreliable) and the coupons (an analysis of which was found to support the defendant's claims). Contrary to the plaintiffs' argument, and as we noted above, we do not believe that evidence submitted in the case of any of the other plaintiffs (including transcripts of conversations between Mordechai and other plaintiffs) should be inferred to attest to the fact that the agreement with Habatum regarding the hourly rate was identical.
87. Mordechai testified that it is possible that during the course of his work the plaintiff noted that his hourly rate was ILS 38, but, according to him, in such a case he clarified that the reference was to the basic wage plus the social rights (Mordechai's testimony at p. 61, paras.  24-31 of the hearing of September 30, 2024):

"Adv. Sharon:                       Okay, when I calculate his hours multiplied by the salary he claims, I get a net sum, I ask you if you ever told him, 'Listen.' Habtom G38 is your salary, it will be divided into 29 and rights'?