Labor Dispute (Tel Aviv) 30818-07-22 Orna Milstein Feldman – Yehudit Milstein Guardianship Yaron Consulting & Guardianship Ltd.

Before:
The Honorable SeniorJudge Ariella Gilzer-Katz

Public Representative (Employees) Ms. Orna Reznik

Public Representative (Employers) Ms. Irit Phillip

 –

Judgment

A daughter took care of her mother's property for decades and was issued pay slips.  Whether there was an employment relationship between the mother and daughter - this is the issue that we are going to decide in the present case. 

The Facts

1. The plaintiff is the defendant's daughter.
2. On February 14, 2022, a temporary guardian was appointed for the defendant in accordance with an order from the Family Court.

The parties' arguments (as arose in the pleadings and as written therein)

The plaintiff's arguments

1. The plaintiff was employed by the defendant from 01.01.95 until the 14th day.2.22, for 27 years and a month and a half.
2. On the 19th.1.14 The defendant signed a power of attorney and provisions regarding her law and property, stating that: "Orna's salary will continue to be paid as it is paid today, i.e., ILS 15,000 per month, linked to the additional cost of living. This salary will be paid to her even if an external guardian is appointed against my will."
3. On the 14th.2.22 A temporary guardian was appointed for the defendant pursuant to an order from the Family Court. Upon receipt of the order and the appointment of an external guardian, the plaintiff was fired from her job.
4. The defendant did not make sure to pay the plaintiff all the sums due to her.
5. The plaintiff and the defendant , in full coordination, used to transfer the social rights money due to the plaintiff to a joint bank account of the plaintiff and the defendant.
6. No settlement was made at the time of the plaintiff's dismissal. In addition, the plaintiff did not take advantage of the vacation days she accumulated for years.
7. The plaintiff is entitled to compensation for unlawful dismissal, mental anguish and failure to conduct a hearing in the amount of ILS 500,000, severance pay in the amount of ILS 406,875, in lieu of advance notice in the amount of ILS 15,000, redemption of vacation in the amount of ILS 337,004, convalescence pay in the amount of ILS 87,251, salary differentials in the amount of ILS 772,970, differences in social contributions in the amount of ILS 759,297, wages for the months 2/22 - 6/22 in the amount of ILS 105,000.
8. The court must issue a declaratory judgment and determine that the defendant will be required to pay the plaintiff a fixed monthly sum of ILS 21,000 for the rest of her life.

The defendant's arguments

1. The Family Court appointed an external guardian. This is not a routine thing.  The purpose of appointing the guardian was, among other things, to check whether irregular actions were carried out with the defendant's funds and/or assets.
2. After the appointment of the guardian, it became clear that the plaintiff had carried out irregular actions in the mother's bank account in the sum of ILS 2 million.
3. When the guardian asked for information regarding the joint bank account, he did not receive a response from the plaintiff.
4. For two years, the plaintiff withdrew close to ILS 2 million from the joint bank account. 5 million of them in a period of less than a year.
5. The plaintiff used to make large withdrawals in the amount of approximately ILS 74,000 from ATMs each month.
6. The source of the funds that accumulated in the bank account was from the sale of the defendant's real estate assets.
7. The plaintiff was not fired, she stopped on her own to take care of her mother and her financial affairs.
8. The plaintiff did not alert the guardian that she intended to file a statement of claim.
9. The "Instruction Document" entitled "Power of Attorney" is invalid, because it does not meet the conditions required by Chapter Two of the Legal Capacity and Guardianship Law, 5722-1962. In addition, this is a forward-looking document, and in these circumstances, the plaintiff cannot claim that what is written in the document should be implemented retroactively.
10. Over the years, the plaintiff would issue her own pay slips.
11. The claim should be dismissed in the absence of a factual description of the cause. In addition, the plaintiff did not quantify the amounts as required and referred to the entire period as a whole.
12. The plaintiff is not entitled to severance pay.
13. The salary that the plaintiff claims is ILS 15,000 is not the salary that is recorded in the pay slips.
14. The daughter's employment with the mother was an improper transaction because it was for improper purposes and appearances only.
15. Alternatively, Section 31 of the Annual Leave Law states that the limitation period is for 3 years.
16. The plaintiff went on many vacations but did not mention this in her paycheck, and therefore she committed offenses of theft and fraud under the Penal Law and the tort of fraud under the Torts Ordinance.
17. The statute of limitations claim applies to the convalescence pay component and to the pension contributions component.
18. Alternatively, this is not a regular job with fixed hours, the plaintiff worked a very small number of hours per month.
19. The lawsuit should be dismissed and the plaintiff should be charged with legal expenses.

The rest of the parties' arguments will be raised in the framework of the decision.