Labor Dispute (Tel Aviv) 10105-10-20 Eli Babayev – Hapoel Ra’anana Football Club - part 6

2.1.1 The player's total base salary will be ILS 204,000 gross.  This amount will be divided into 10 monthly salaries (for the months of August-May) of ILS 20,400 gross each.

2.1.2 In addition, the player will receive a bonus for each league point won by the team, in the sum of ILS 1,275 gross for each point, according to 40 league points accumulated personally.

2.1.3 The bonuses for the league points as mentioned above will be paid to the player if the team and/ or a partner as a substitute is included in the first lineup during the match for which the bonuses are paid.  If the player is included in the match form and does not participate during the match, the player will receive only half of the bonuses for league points for that match.  If the player is not included in the match form for the game for which the bonuses are paid, the player will not receive any bonus for that match.

2.1.4 ...."

35. From the aforesaid, it emerges that the grants received by the plaintiff were indeed conditional, similar to the grants in the Roach case, and as such do not constitute part of the plaintiff's determining salary for the purpose of calculating his rights. The plaintiff even confirmed in his cross-examination that the premiums he received were conditional on his participation in the team's games (see p.  33 of the minutes of the hearing, lines 14-27).  Similar rulings were issued in this matter as well in other cases in which the case of athletes who received points awards similar to the plaintiff was discussed (see, for example, the cases mentioned above, as well as a labor dispute (Tel Aviv) 15358-10-20 Adi Nemani - Hapoel Ra'anana Football Club, [Nevo] given on August 29, 2024).
36. An examination of the plaintiff's pay slips shows that his last salary was ILS 19,900. Since the plaintiff worked for the defendant for 8 years, 10 months each year (a game season from August to May), he is entitled to compensation in the amount of ILS 19,900 X 80 months / 12 = ILS 132,666.  Therefore, the amount accrued by the plaintiff in the compensation component of the provident fund in the amount of ILS 30,431 must be reduced in accordance with Form 161 (filed in the file on May 4, 2023).  Thus, the plaintiff is entitled to the balance of compensation in the amount of ILS 102,235.  In the circumstances of the case, We did not find that the plaintiff should be awarded severance pay because no claim was filed within one year from the date of termination of the plaintiff's employment (see section 17A of the Wages Protection Law, 5718-1958).

Pension Deposits

37. According to the plaintiff, the defendant did not deposit all the funds for the pension and compensation components for him, and therefore he petitions to obligate the defendant to pay compensation in the sum of 116,127 (see paragraphs 37-40 of the statement of claim, paragraphs 47-53 of the plaintiff's summaries). The defendant claims that she deposited funds for the plaintiff into the pension fund at the Clal insurance company and gave him the forms for the release of funds from the fund in July 2018 (see paragraphs 66-68 of the statement of defense).  In its summaries, the defendant claims that she deposited a total of ILS 76,990.56 for the plaintiff and that the plaintiff's calculations were wrong, since he calculated the deposits in accordance with 12 months of work and also made his calculations according to the salary paid to him and not according to the average wage in the economy, as required by the mandatory pension extension order (see paragraphs 88-99 of the defendant's summaries).
38. As stated, the defendant does not deny that it is obligated to deposit pension deposits for the plaintiff. We are unable to accept the plaintiff's calculations in this component for a number of reasons: First, the plaintiff also included in his calculations the employee's share of the deposits, but did not refer to any normative source by virtue of which the defendant should be obligated to this component.  Second, the plaintiff also included in his calculations the severance pay component, which is a separate component, and we have already awarded the plaintiff the severance pay to which he is entitled, and therefore there is no reason to award him double compensation.  Third, there is substance to the defendant's argument that the calculation must be made for most of the plaintiff's employment period in accordance with the average wage in the economy and not according to the salary actually paid to him, in light of the provision of section 6.c of the Compulsory Pension Extension Order, which states that "the pension insurance obligation will apply to the fraction paid to the employee, or the average wage in the economy according to which it will be updated from time to time, whichever is lower."
39. Taking into account the aforesaid, the plaintiff is entitled to pension deposits in the employer's share in the sum of ILS 28,855 according to the following calculation and subject to the limitation period (October 2013):

40. Therefore, the funds deposited by the defendant into the employer's benefits component of the plaintiff's provident fund during this period should be deducted in the sum of ILS 25,613, as appears from the deposit reports of Clal that the defendant submitted to the case on May 4, 2023. In view of the aforesaid, the defendant must make up the difference in the sum of ILS 3,242 for the plaintiff.

Convalescence Pay

41. The plaintiff petitions for payment for 52 convalescence days with a total value of ILS 21,464 (after adding interest and linkage differences) (see paragraphs 46-47 of the statement of claim). In his summaries, the plaintiff claims that only from August 2017 did the defendant begin to include a convalescence component in the pay slips, and that too in a fictitious manner, since the convalescence component was deducted from his agreed salary without his knowledge or authorization to do so (see paragraphs 65-69 of the plaintiff's summaries).
42. The defendant claims that the parties explicitly agreed that the convalescence pay to which the plaintiff is entitled would be paid to him every month together with his basic salary, and therefore the plaintiff is not entitled to any amount in this component. In addition, the defendant claims that the plaintiff did not work full-time, given the nature of the occupation and the duration of his employment.  It was also argued that the plaintiff is entitled to claim convalescence pay for the last two years of his employment only (see paragraphs 50-55 of the statement of defense).  In its summaries, the defendant reiterated its claims that the agreement between the parties explicitly stipulated that the plaintiff's salary would include the convalescence pay in the sum of ILS 300 per month, and therefore the plaintiff is not entitled to any sum in this component (see paragraph 86 of the defendant's summaries).
43. In accordance with the case law, there is no impediment to splitting the convalescence pay, but this is subject to the explicit consent of the employee (see Labor Appeal (National) 55490-06-14 Angela Louise Godfrey v. The Israeli Movement for House Demolitions, [Nevo] given on August 7, 2018).  This consent can be learned both from the explicit expression and from the conduct of the parties, with the burden of proving such consent resting on the employer (Labor Appeal (National) 44196-10-14 Hasson - Halabi Salaman Moving Company Ltd.[Nevo] was given on December 7, 2017; Labor Appeal (National) 54650-09-16 Shoval - Security Services Avidar Ltd., [Nevo] Given on June 20, 2018).
44. In our case, a review of the plaintiff's employment agreements shows that they did not include an explicit provision whereby the plaintiff's salary will include convalescence pay, except for that general provision that we discussed earlier in the chapter we discussed severance pay, according to which the agreed salary reflects the "final and exclusive total cost" of the plaintiff's employment, and that to the extent that it is determined that the plaintiff is entitled to additional rights, his determining salary will be at the level of the minimum wage. Nor do the plaintiff's pay slips reflect such consent, since they do not contain a separate line for the convalescence pay.
45. At the same time, the plaintiff's employment agreement from June 2017 for the 2017/18, 2018/19 and 2019/20 seasons did indeed include such a clause regarding convalescence pay, according to which "the salary paid to the player includes convalescence pay in the sum of ILS 300 per month and travel expenses in the amount of ILS 200" (see clause 2.3.4 of the 2017 agreement, Appendix C to the plaintiff's affidavit). This agreement is also reflected in the plaintiff's salary slips for the months of August 2017-May 2018.  In the framework of these documents, it can be seen that the plaintiff was paid monthly travel and convalescence in the agreed amounts.  Therefore, the defendant was unable to prove that until the 2017/18 season, the plaintiff agreed that the convalescence pay would be included in the agreed salary, and that the convalescence amounts paid to the plaintiff in that season should be subtracted from the total convalescence pay to which he is entitled.
46. In accordance with the statute of limitations and in light of the plaintiff's seniority, he is entitled for the period between October 2013 and the termination of his employment, which are the 4-8 years of his employment, to a sum of 32.6 convalescence days, at a value of ILS 32.6 X 378 = ILS 12,323. We will clarify that there is no basis for the defendant's claim that the plaintiff was entitled to claim convalescence pay for the last two years of his employment only, since at the time of the termination of the plaintiff's employment, the statute of limitations for convalescence pay was 7 years.
47. However, this is not enough, since according to the law, the payment of convalescence pay is made in proportion to the employee's part-time job, and therefore we must determine the rate of the plaintiff's job. The plaintiff claims that the scope of his job is one training session a day, including a total of 4 hours, 5 days a week, and a game on Saturday.  At the same time, the plaintiff claims that he should be considered to have been employed 'full-time' in accordance with the practice in the football industry (see paragraphs 41-45 of the statement of claim).
48. There is no room to accept this argument. The plaintiff relies in this matter on the judgment in the Kritzler case (National Labor Court Hearing (National) 55/153-3 Tamar Kritzler v.  Malka Ohayon, IsrSC 29(1) 192 [Nevo]), where it was held, according to his argument, that the scope of an employee's position should be examined according to what is customary in the workplace (see paragraph 41 of the statement of claim).  However, this was not written in the context of a convalescence allowance, but rather in relation to the right to a minimum wage.  This is in light of the provision of Section 2 of the Minimum Wage Law, 5747-XXXXX, which states that "an employee who has reached the age of 18 years (hereinafter - an employee) who is employed full-time, as is customary in his workplace, is entitled to receive from his employer a wage not less than the minimum wage..." (See also Labor Appeal (National) 664/08 Ashraf Abbasi v.  East Jerusalem Electric Company Ltd., [Nevo] was given on February 21, 2010).  In view of the aforesaid, since we have not found a basis to determine that these determinations are valid even in relation to the right to convalescence pay, there is no reason to determine that the plaintiff was employed full-time for this purpose.
49. As stated, the plaintiff stated that the scope of his job is one training session a day and an organization of 4 hours, 5 days a week, as well as a game on Saturday (see paragraph 36 of his affidavit). In addition, in his pay slips during the last season (2017/18) it was written that he was employed part-time of 0.6450 (64.5%), while we do not have before us the plaintiff's claim that the scope of his job has changed over the years.  Therefore, it must be determined that the plaintiff was employed for 64.5% of the time and accordingly he is entitled to this portion of the convalescence pay that we ruled above, i.e., 12,323 X 64.5% = ILS 7,948.  From this, as stated, the ILS 3,000 paid to him in the last 2017/18 season (ILS 300 per month in the months of August 17 - May 18) must be deducted, so that the sum of the fees The recovery rate is ILS 4,948.

Vacation Redemption

50. The plaintiff claims that the defendant did not maintain a vacation book as charged to her, and therefore he petitions for the redemption of 77 vacation days in the total amount of ILS 78,400 (see paragraphs 48-51 of the statement of claim, paragraphs 70-75 of the plaintiff's summaries). The defendant claims that the plaintiff's salary also included the vacation days to which he was entitled and that the matter was known to him in real time.  In addition, the plaintiff was entitled to many vacation days, which stemmed, inter alia, from vacations, rest days, etc., and never raised any claim in connection with the non-provision of vacation days (see paragraphs 56-61 of the statement of defense).  In its summaries, the defendant argues that the plaintiff used all the vacation days to which he is entitled and even more, and that at most the plaintiff is entitled to redemption of 10.5 vacation days (see paragraphs 76-83 of the defendant's summaries).
51. At the outset, we will clarify that there is no reason to accept the argument that the plaintiff's salary included vacation pay, since this is contrary to section 5 of the Wages Protection Law, which explicitly states that there is a prohibition on the payment of wages, which includes, inter alia, vacation pay or vacation redemption. The defendant's argument that the months off between the seasons constitute a "vacation" should also be rejected, since the plaintiff did not receive wages for these periods (about one month a year).
52. As to the plaintiff's entitlement. In accordance with the ruling, the burden of proving the use of vacation days by the employee and payment thereof rests on the shoulders of the employer, who is obligated by law to maintain a vacation register [see the Annual Leave Law 5711-1951 (hereinafter: the "Annual Leave Law") as well as Labor Appeal (National) 15546-05-11 Shimon Buskila - Netivei Maayan Aviv Ltd., [Nevo] given on February 24, 2015].  There is no dispute that the defendant did not present such a vacation book.  At the same time, it is well known that pay slips constitute "first and foremost written evidence" of the balance of vacation days due to the employee in the absence of evidence to the contrary [see Labor Appeal (National) 21920-02-13 Diamant Toys in Tax Appeal - Valentina Frantsev, [Nevo] given on June 1, 2015), in our case, the plaintiff's pay slips until the last 2017/18 season did not include any tracking of absences due to vacation/sick leave and therefore they cannot be relied upon, and the claimant's entitlement must be calculated independently of this.
53. In accordance with the case law, the plaintiff is entitled to vacation days for the last three years of his employment and the year of ongoing work (see Labor Appeal (National) 547/06 Moshe Cohen v. William Anoya, [Nevo] given on October 8, 2017).  In our case, we are dealing with the years 2015-2018, which are the sixth to ninth years of his employment.  For the sixth year (2015) the plaintiff is entitled to 18 vacation days in accordance with the law, and for the seventh year (2016) the plaintiff is entitled to:21 vacation days.  For the eighth year (2017) the plaintiff is entitled to 22 vacation days and for his last year of employment (2018) he is entitled to 12 vacation days (according to the calculation under section 3(c)(2) of the Annual Leave Law).  In total, the plaintiff is entitled to 73 vacation days in accordance with this calculation.
54. In light of the fact that the plaintiff's last salary was ILS 19,900, the value of a vacation day is ILS 19,900/25 = ILS 796. Thus, for 73 vacation days, the plaintiff is entitled to ILS 58,108.  The defendant did not claim and in any case did not prove that the plaintiff took advantage of vacation days during the period of his employment, and as stated above, we rejected her argument that the vacation period constitutes a "vacation" that reduces the plaintiff's entitlement.  Therefore, he is entitled to the full amount calculated above.

Remuneration for work on Shabbat

55. According to the plaintiff, during the years of his employment, the defendant did not pay him for his working hours on Saturdays, when the team's games were held. Accordingly, the plaintiff petitions for payment of a 150% tariff for 4 hours of work every Saturday in the total amount of ILS 194,400 after adding interest and linkage differentials (see paragraphs 52-56 of the statement of claim, paragraphs 54-63 of the plaintiff's summaries).
56. The defendant claims that the plaintiff received sufficient "compensatory rest", that his salary included wages for work on the Sabbath, and that the Hours of Work and Rest Law, 5711-1951 (hereinafter: the "Hours of Work and Rest Law") does not apply to the plaintiff due to the special employment relationship between the parties, and since the plaintiff never raised a claim in this context. The defendant further claims that on March 26, 2018, the Minister of Labor granted a general permit to employ employees during the weekly rest for the purpose of holding soccer matches (hereinafter: the "Permit").  The defendant claims that she complied with the provisions of this permit and that the plaintiff was given and that she was used above the quota of rest hours set out in the permit, and therefore he is not entitled to compensation for working on Saturdays (see paragraphs 62-65 of the statement of defense, paragraphs 55-58 of the defendant's summaries).
57. First, the defendant's argument that the Hours of Work and Rest Law does not apply to the employment relations between the parties in light of the fact that they are a "special relationship" should be rejected. This is a claim that was made in vain, without the defendant referring to one of the exceptions set forth in the law and without detailing or proving why the plaintiff fell within the scope of them.  The judgment to which the defendant referred in its summaries (Labor Dispute 70645-11-16 Greenbaum v.  Bnei Ramat Gan, [Nevo] was given on January 29, 2017; see paragraph 66 of the defendant's summaries) and it does not help her.  This is an incidental statement according to which "the players of the professional leagues have been expelled...  of the application of the Hours of Work and Rest Law", which was written as part of a decision of a regional court on a group request to stay proceedings and transfer the dispute between it and one of its players to arbitration.  In any event, in accordance with the case law, the interpretation of the exceptions to the Hours of Work and Rest Law is done in a limited manner, in order to exclude fewer workers from its application and more workers to benefit from the protections it provides (Labor Appeal (National) 300271/98 Tepco - Manufacturing of Energy Control Systems and Installations, [Nevo] given on November 29, 2000).  The claim that the plaintiff's salary included the remuneration for work on the Sabbath is also rejected, in light of the provision of section 5 of the Wage Protection Law, which prohibits the payment of wages, which includes remuneration for work on the weekly rest.
58. As to the permit to which the defendant referred, it states as follows:

"A.  In lieu of the hours of rest in respect of which employees have been granted this permit, the employer shall give them, at the latest, within four weeks, hours of rest equal to the number of hours they worked (hereinafter - compensatory rest);

1. The compensation rest shall include at least 13 times a year, the day on which the employee's weekly rest occurs; To the extent possible, the compensatory rest will be given on the day on which the weekly rest as aforesaid occurs, once every four weeks;
2. The compensatory rest shall be continuous, but if a compensatory rest of more than twenty-five hours is due, it may be divided into chapters, provided that each part of it shall not be less than twenty-five hours or the remainder of the compensatory rest due."
3. In the Emilius case mentioned above, the court held, and we join its ruling, that "the permit to which the defendant refers is intended to protect her from the criminal aspect, and the permit and its provisions do not exempt the employer from giving an employee who worked on the weekly rest day, the remuneration to which he is entitled in accordance with the provisions of the law in section 17(a)(1) and (2). In other words, both the increased wage and the rest of the compensation together" (see paragraph 118 of the judgment).
4. In view of the aforesaid, we have determined that the plaintiff's salary did not include payment for work during the weekly rest, and when the defendant did not present any evidence that she acted in accordance with the provisions of the permit to provide compensatory rest, the defendant must pay the plaintiff remuneration for work during the weekly rest. At the same time, we did not find to accept the plaintiff's calculations.  First, the plaintiff petitioned for payment in the amount of 150% of his salary, while he is entitled to Delta only, There is no dispute and the plaintiff did not even claim that he did not receive wages for his 'regular' working hours (100%).
5. Second, the plaintiff petitioned for payment for 8 years multiplied by 12 months, while there is no dispute that the soccer season is only 10 months and even the salary under which he claimed is not the correct salary, since it was based on a salary of 100%. We should also note that a review of the schedule of games that the defendant attached to the statement of defense (Appendix A) shows that not all of the games in which the plaintiff participated were held on Saturdays and some were also held on weekdays.  We are aware that the defendant did not attach these documents to the affidavit.  However, given that these are material documents from which it is possible to accurately derive the number of games in which the plaintiff played on Shabbat and, as a result, the remuneration to which he is entitled - we found it appropriate to rely on them.
6. An examination of the game boards shows that as of October 2013, the plaintiff played as follows (taking into account the statute of limitations):

63. Accordingly, the plaintiff is entitled to work on Saturdays in the amount of ILS 19,388, based on 4 hours of work every Saturday, according to 50% of the hourly rate, with the hourly rate calculated according to monthly wages divided by 186 according to a job percentage of 64% (i.e., 119 hours):