[See also Discussion (National) 55/3-125 Discussion (National) 55/3-125 Alon Ben Dor v. Meir Julius, 29 (1) 286 (1996), 29 (1) 286 (1996); Labor Appeal (National) 163/06 Sarah Eichstein v. Association of Cities for Fire Brigades Holon, Bat Yam, Azor, in Tax Appeal (published in Nevo, July 1, 2008); Smadar Ottolenghi, Arbitration - Law and Procedure, Vol. 2, pp. 1167-1168 (4th edition, 2005) (hereinafter - Ottolenghi)].
- As stated, one of the cases that the tribunal will consider to be a "special circumstance" that justifies an exception to the rule whereby an arbitrator is not authorized to adjudicate on rights originating in protective legislation is the raising of the claim of lack of jurisdiction retroactively, after the completion of the arbitration process and the rendering of a decision. Such conduct, in which a party holds the claim of lack of jurisdiction as a "trump card", which it can "pull" insofar as the outcome of the arbitration is not to its liking, creates precludes that party from making use of this claim. Thus, the principle of preclude is intended to prevent the abuse of the provisions of the law.
- In our case, the Applicant himself, who was represented throughout the arbitration proceeding, was the one who chose to submit his claim with all its components to the Association's Arbitration Institute, was silent throughout the entire arbitration process and raised the claim of lack of jurisdiction for the first time only after receiving the results of the arbitration award, in which it was ruled against him. This case is one of those cases in which the applicant's extreme lack of good faith in raising the claim of lack of authority at this stage creates obstacles against the applicant from raising the claim of lack of authority and justifies its rejection.
- Before closing this matter, since we are dealing with rights in the field of protective legislation, we will examine whether the rejection of the Applicant's claims due to such precludes will create a miscarriage of justice, which justifies accepting the Applicant's claims despite the impediments he established in his actions.
- With regard to the pension deposits that the Respondent should have made, after considering the Applicant's arguments, we found that no miscarriage of law was caused that justifies the annulment of the arbitrator's decision. In this regard, we accept the arbitrator's ruling, which accepted the respondent's calculation and ordered it to pay the applicant the sum of ILS 2,322 for unmade deposits.
The Respondent presented three reasons for the payment of sums that are lower and different from the amount demanded by the Applicant, which are consistent with the provisions of the Combined Extension Order for Mandatory Pension, 2011: making deposits in accordance with the average wage in the economy, which is lower than the Applicant's salary; payment for the employer's share only, since the applicant was paid his full salary without deductions for the employee's share; and making deposits from the end of the first six months of employment, from the moment the applicant did not show that he was insured in a pension fund previously. The Applicant, for his part, chose not to take advantage of his right to submit reply summaries in the framework of the arbitration proceeding, and thus refrained from raising counter-arguments to the calculation made by the Respondent. Even in the framework of the proceeding before us, the Applicant chose not to respond to the Respondent's manner of calculation, even though he took the liberty to raise other factual claims, which he must comply with.