In principle, everything is closed as far as I am concerned, as we agreed
And with God's help, we will prepare everything next week" (Appendices to the statement of defense - page 4 of the announcement of January 16, 2024).
- The next morning, Mr. Kfir Barak asked the plaintiff to contact "Haim" (Alkobi, one of the managers of the chain), in order to coordinate.a work meeting from the professional side" and gave him the appropriate contact details. On the evening of that day, the plaintiff wrote to Mr. Kfir Barak:
"Kfir, I enjoyed our meeting yesterday. I met with Haim today for about two hours. The company looks great and I'm happy to get the job. The issue of the vehicle is essential. I want to feel like I'm coming from Jerusalem. My car is used by me and the girls. Interested in getting the job *for the long term and getting the job* (sic. I also raised the issue of the car in a meeting with Haim and he said he would talk to you and a solution could be found. I would be happy if we could get to Emek HaShaveh on the matter. Thanks!
Mr. Kfir Barak, for his part, replied that he had not yet spoken with Mr. Alkobi and that he would update the plaintiff.
- There is no dispute that the plaintiff's first work day was June 11, 2023.
On June 13, 2023, in the evening, the plaintiff sent Mr. Kfir Barak a "personal employment contract from an area manager" on WhatsApp and wrote: "Hi Kfir, what do you mean, I took a contract from the contracts on the computer and put the terms of the employment on it. Please break the contract..."
- Mr. Kfir Barak reviewed the contract and asked to speak with the plaintiff about it. A reminder on the matter was sent to the plaintiff by Mr. Kfir Barak via WhatsApp on June 20, 2023 (from the correspondence in the appendix to the statement of defense). On June 25, 2023, Mr. Kfir Barak sent the plaintiff a draft contract and asked him to "use the platform of this contract, I have written a number of comments for you, insert them here." Mr. Kfir Barak's handwritten comments were presented for our reference (Appendix to Mr. Kfir Barak's affidavit, on page 29). In his testimony before us, Mr. Kfir Barak was of the opinion that his comments were written on another contract that he made in the WORD software (p. 51, line 16 to p. 52, verse 19). However, the impression that remains is that he sent the plaintiff his notes on the contract that the plaintiff prepared in the first place. Thus, for example, Mr. Kfir Barak deleted a line that read, "In addition, the employee is entitled to reimbursement for repairs and servicing for the vehicle," and changed the amount of the vehicle's expenses and converted them to gross, etc. In any event, there is no dispute that this was the last correspondence between the parties regarding an employment contract. The plaintiff did not amend the contract as requested by Mr. Kfir Barak, and therefore it was not signed.
So far, the factual basis is from here to the heads of the prosecution and the parties' arguments regarding them.
- As to the employment contract that was not signed: According to the plaintiff, the fact that an employment agreement was not signed with him stems from bad faith on the part of his employer. In the statement of claim, he demanded: "Due to the defendants' denial that there is a contract and there is no agreement on 60 days' notice, the plaintiff is requesting two months' salary, including all the conditions - pension provision and the JNF - 24,671*2=49,342." In his summaries, the plaintiff set his demand at ILS 42,000 (section 6(a)) and claimed that it was proven that the defendant did not sign an employment agreement with him, but that there was a draft agreement, which was not in the plaintiff's possession, in which a notice period of 60 days was recorded, as approved by the defendant in the minutes of the preliminary meeting (p. 1, line 24). According to him, on June 25, 2023, a final draft of an employment agreement was sent and Mr. Kfir Barak deliberately and consciously decided not to sign it. Nevertheless, he chose to continue to employ the plaintiff without a valid employment agreement. The defendant also did not give him notice to the employee, and therefore, according to the ruling, his version should be preferred over the defendant's version, and he should be awarded payment instead of 60 days' notice, including social benefits.
The defendant, for its part, admits that the last time a draft agreement with the plaintiff was exchanged was on June 25, 2023, when Mr. Kfir Barak sent the plaintiff a draft agreement and asked the plaintiff to fulfill the terms of work agreed upon at the meeting between them, but the plaintiff did not return the draft agreement and did not sign it. Thus, an employment agreement was indeed not signed with him, but it was due to the plaintiff and apparently as part of the planning of the lawsuit. According to the defendant, in the drafts that were exchanged between the parties, it was recorded that the advance notice was given in accordance with the Advance Notice for Dismissal and Resignation Law, 5761-2001 (hereinafter: the Advance Notice Law), and that there is no logic in the plaintiff's claim in this component, since if an agreement is not signed, it is not possible to sue according to a condition written therein, and all the more so that the plaintiff's short period of employment is almost the length of the notice period that he claiMs.
- Let us begin by saying that the cause of action in this context is not entirely clear. The more we get to the conclusion of the plaintiff's opinion and the manner in which he drafted the statement of claim, the more it appears that the cause of action is rooted in section 12 of the Contracts (General Part) Law, 5733-1973, which deals with a person's duty to act in an acceptable manner and in good faith in negotiations prior to the conclusion of a contract. Otherwise, he will be obligated to pay compensation for the damage caused as a result of the negotiations or as a result of the conclusion of the contract. Here, the plaintiff seeks compensation for not signing the employment agreement in bad faith and denying the existence of a contract, and the amount of compensation he claimed is about the rate of two months of work. However, in his summaries he claimed that this was a claim for compensation for the exchange of two months' notice.
- In any event, insofar as this is a cause of action by virtue of section 12 of the Contracts Law, our opinion is that the plaintiff failed to prove that the defendant acted towards him in bad faith. The plaintiff based his claim on this component on the WhatsApp app correspondence that we brought in the factual chapter. However, an examination of the notices shows that the defendant is correct in that on June 25, 2023, Mr. Kfir Barak sent the plaintiff a file and two photos of a draft agreement with handwritten notes that are the terms of the work that he asked the plaintiff to "plant" in the draft. The problem is that the plaintiff did not clarify whether and when he returned the amended draft to Mr. Kfir Barak, and in fact, our impression from the additional correspondence until the end of the plaintiff's term of employment is that he did not do so, and at the very least, he did not raise a claim that he submitted to Mr. Kfir Barak an amended draft as requested. Moreover, from his cross-examination of Mr. Kfir Barak, it emerged that in practice, the plaintiff himself agrees that he did not return the amended draft (p. 66, lines 16-19). The plaintiff also did not express displeasure or complaint about bad faith in the fact that Mr. Kfir Barak did not sign the amended draft. In other words, the evidence used by the plaintiff to prove his claim of bad faith on the part of the defendant actually supports the defendant's claim that she sought to promote the signing of the employment agreement, whereas the plaintiff who should have returned a signed agreement did not do so.
- In the cross-examination, the plaintiff proposed to Mr. Kfir Barak a thesis that on June 25, 2023, he had already understood that he was not interested in continuing to employ the plaintiff, but that if he dismissed him, he would be left without an employee to perform his duties, because the employee whom the plaintiff replaced (Rivki) no longer worked for the defendant. Therefore, he decided to continue employing the plaintiff without an employment agreement until he found another employee (p. 54, lines 2-4). Mr. Kfir Barak rejected this thesis outright and even clarified that to date he had not found an employee for the plaintiff's job (p. 55, lines 29-32). Later on, he rightly wondered how the thesis was consistent with the practice in the chain and the fact that all the other 750 employees of the chain had signed employment contracts (p. 56, line 20).
In light of the above, our position is that the plaintiff has not proven that the defendant acted with him in bad faith in conducting negotiations, and therefore he is not entitled to compensation for her conduct.
- Without derogating from our determination that there was no proof of bad faith conduct, we will add that the plaintiff also did not prove that in the drafts exchanged between the parties, it was recorded that the period of advance notice would be 60 days, and therefore this is the amount of compensation to which he is entitled. The plaintiff did not attach a draft agreement stating that the notice period would be 60 days. In the draft agreement that Mr. Kfir Barak sent to the plaintiff on June 25, 2023, and a copy of which was attached to his affidavit, it was recorded that the termination of the engagement would be in accordance with the Advance Notice Law, and that no handwritten note was recorded. This first came up in a message sent by the plaintiff on the WhatsApp application on August 23, 2023, in response to the hearing, in which he wrote, "I will continue my work according to the contract as long as you have not notified me otherwise. In any case, according to the contract, there is a period of 60 days' notice at the end of the transaction." However, such an agreement was not presented. The plaintiff found support for his claim that in response to the notice, Mr. Kfir Barak did not deny that the draft employment agreement stipulated 60 days' notice, and mainly because the defendant's counsel admitted at the preliminary meeting that there was such a stipulation in the draft employment agreement. However, the two reasons do not help the plaintiff and do not prove his version.
First, because it is true that in response to the plaintiff's statement, Mr. Kfir Barak categorically denied the very existence of such an agreement: "To the best of my recollection, no employment agreement has yet been signed between us... And if you claim that there is such an agreement, I would be happy to see it in order to understand when the agreement was signed and who signed it..." (Notice dated August 24, 2003, in paragraph 16 of the plaintiff's main witness affidavit), and this is sufficient to deny the period of advance notice claimed by the plaintiff as well. Second, in his cross-examination, Mr. Kfir Barak clarified, time and again, that there was no agreement on 60 days' notice and that the period of advance notice "was not in the negotiations at all" (p. 57, lines 22-23), but rather was an "invention" by the plaintiff (see also: p. 57, lines 23, 28; p. 58, lines 13, 38). And the argument of the defendant's counsel at the preliminary hearing that the plaintiff "wrote 60 days' advance notice on the contract" is erroneous. Moreover, the plaintiff was asked in his cross-examination what Mr. Kfir Barak's comments were to the draft agreement that the plaintiff forwarded to him, other than those that appeared in the draft that was attached to the defendant's affidavit but he did not recall (p. 10, lines 13-28). In other words, he himself did not mention that there was a dispute regarding the length of the notice period.