First of all, I would like to thank you for being part of the Hapoel Ra'anana family and for your contribution in the 2017/18 season.
We bring to your attention that according to the agreement and the appendix signed between us in July 2017, it is written that Hapoel Ra'anana must notify you by June 15, 2018 of the exercise and/or non-exercise of the option to extend the agreement for the 2018/19 and 2019/10 seasons (ZL 2019/20, M.K.) according to the agreement.
Therefore, we hereby inform you, for the sake of good order, that Hapoel Ra'anana has decided not to exercise the option given to it according to the agreement signed between the parties for the 2018/19 seasons and onwards, and you are entitled to negotiate with any team you wish.
Hapoel Ra'anana wishes you success in your future endeavors.
- In this way, as stated, it is in fact possible to view the plaintiff's employment contract as a contract for three fixed periods, with the defendant at the end of each period informing the plaintiff whether he continues for the next period (season). In view of the aforesaid, where the defendant, even according to its approach, chose not to exercise the extension option and not to continue to engage with the plaintiff for the 2018/19 season - this is in fact a lack of an offer from the employer to renew the contract and the plaintiff should be seen as if he had been fired. In accordance with Section 9 of the Severance Pay Law or in accordance with Section 1 of the Severance Pay Law.
- The word box "without paying any compensation to the player" that appears in the option section above, does not, in our opinion, negate entitlement to severance pay, but apparently deny compensation for breach of contract under the Contracts Law, since the right to severance pay, in the circumstances of the termination of the transaction from a credit, is a cogent right that cannot be overcome contractually in any case.
- The question of whether the plaintiff negotiated simultaneously with another team and whether he sought to be released from the contract is irrelevant, since the defendant's CEO, Arlan, testified in his affidavit that during the 2017/18 season, the plaintiff did not integrate professionally into the club, and that alongside the plaintiff's dissatisfaction, there was also the defendant's dissatisfaction with his professional abilities (see paragraph 14 of Mr. Arlan's affidavit). He also testified that in November 2017, the defendant offered the plaintiff to sign a new employment contract when he refused the terms of the contract offered to him ( Paragraph 16 of his affidavit), however, this was not proven, and in his interrogation Mr. Arlan even testified that he did not work for the team at all during this period, but began to serve as the defendant's deputy general manager only in 2020 (see p. 36 of the minutes of the hearing, lines 1-6), when in any event, there is no dispute that the defendant sent the plaintiff on April 18, 2018, a notice regarding her unwillingness to engage with him during the 2018-2019 season.
- Taking into account the aforesaid, the plaintiff is entitled to severance pay for the period of his employment with the defendant, until May 31, 2018. We will now turn to the calculation of the total compensation.
The amount of the determining salary and the calculation of the plaintiff's severance pay
- The plaintiff claims that in his last year of employment, his total salary was ILS 304,980 for 10 months, so that his last salary was ILS 34,498 gross per month. Therefore, the plaintiff claims that he is entitled to severance pay for 8 years in the sum of ILS 34,498 X 8 years = ILS 275,984 (see paragraphs 27-29 of the statement of claim). In addition, the plaintiff claims that he is also entitled to severance pay for the league points grant he received. in the sum of ILS 51,000 (see paragraphs 30-36 of the statement of claim).
- The defendant claims that the plaintiff is not entitled to severance pay because his employment agreement explicitly stipulates that his salary includes severance pay and the full social conditions to which he is entitled for the engagement between the parties. The agreement also stipulates that if it is determined that the player is entitled to additional social rights beyond his salary, the determining salary for the purpose of calculating his rights will be a minimum wage (see paragraphs 37-41 of the statement of defense).
- In its summaries, the defendant clarifies that it does not claim that the plaintiff's salary includes severance pay, but rather that the determining salary for calculating the severance pay must be calculated in accordance with the amount of the minimum wage at the time of the termination of the employment relationship between the parties, as appears from his employment agreement (see paragraph 54 of the defendant's summaries). The defendant further argues that the plaintiff is not entitled to compensation for the points grant he received, which is not part of the determining salary for the purpose of calculating severance pay, and that to the extent that severance pay is awarded in favor of the plaintiff, the compensation paid to him at the end of his employment should be reduced to ILS 30,431.
- An examination of the plaintiff's employment agreements (Appendix C to the plaintiff's affidavit) shows that he used to sign a uniform "players' agreement form" every season. In the framework of clause 9 of those agreements, it was stipulated, inter alia, as follows:
"9. Protection from conflicting claims and wages, including severance pay
- It is hereby agreed and declared, unless otherwise agreed in a special collective agreement, that the consideration agreed upon by the player and the team was determined in consideration of a common understanding and on the basis of the assumption that the cost caused to the team as a result of the player's employment is the final and exclusive total cost, including additional social conditions, that the team will have in all matters relating to the engagement between the parties.
Therefore, if it is determined by the transfer of a place of discussion and/or by another competent authority, whether according to the team's application, according to the player's request or any other party in a contradictory claim, that notwithstanding the aforesaid, the player is entitled to additional rights as an employee, including severance pay, then it is agreed between the parties that the determining wage for the purpose of calculating the player's rights will be the minimum wage as published by the Minister of Labor and Welfare. As stated in Section 6 of the Minimum Wage Law, 5747-XXXXX,on the date of termination of the employment relationship between the player and the team (hereinafter: "the determining salary as an employee")..."
- As to the inclusion of severance pay in the plaintiff's salary - even though the defendant clarified in its summaries that it does not claim this, in any event, in accordance with the ruling of the National Court, this is an arrangement that is invalid insofar as it did not receive the approval of the Minister of Labor under section 28 of the Severance Pay Law (see Labor Appeal 4448-10-19 Hapoel Haifa Millennium in a Tax Appeal - Oshri Roash, [Nevo] given on November 16, 2020; hereinafter: "the Roach case").
- As for the argument that the plaintiff's rights should be calculated in accordance with the minimum wage. Recently, the Honorable Senior Judge Abu Kaoud ruled in a similar matter:
"The provisions of the employment agreement, which stipulate that the agreement reflects the total cost of the club's salary and that in the event of a conflicting claim, the plaintiff's rights will be calculated on the basis of the minimum wage, undermine the purpose of the protective labor law, as stated above. A similar argument was raised and rejected in the judgment in the Expansive Case,[16] where it was held that the precondition of preconditional receipt of wages beyond the minimum wage on the prior waiver of cogent rights impairs the free will of the employee who was obviously interested in a wage higher than the minimum wage, and he was forced to pay for this aspiration by relinquishing rights to which he is entitled by law..."