Labor Dispute (Jerusalem) 40601-02-17 Israel Eini v. Hapoel Jerusalem Football Association

03 September 2017

Before:

The Honorable Prostate Registration is encouraged

Decision

Before me is the Applicant's (hereinafter - the Defendant) motion to order the dismissal of the claim against her in limine and alternatively to order a stay of proceedings by virtue of Section 5 of the Arbitration Law, 5728 - 1968 (hereinafter - the Law) and to order the transfer of the investigation of the Respondent's (hereinafter - the Plaintiff) claims against the Defendant to the Arbitration Institute of the Football Association, in accordance with the agreement signed by the Plaintiff on July 3, 2016 (hereinafter - the Agreement).

Background to the application

1. The plaintiff was employed by the defendant as an assistant coach, in the period from July 1, 2016 until November 8, 2016, when he left his job.
2. Clause 7 of the agreement between the parties states as follows:
3. The parties hereby agree that the differences of opinion between the team and the coach or between the coach and the team in all matters relating to the provisions of this agreement, will be brought to the decision of an arbitrator appointed by virtue of the Association's Arbitration Institute's bylaws.
4. The arbitration will be conducted in accordance with the provisions of the Association's Arbitration Institute's bylaws.
5. On February 19, 2017, the plaintiff filed his claim against the defendant, in which he petitioned for payment of wage differences, pension contributions, vacation redemption, wage withholding compensation, as well as compensation for failure to prepare the pay slip in accordance with the law.
6. To complete the picture, it should be noted that the defendant filed a lawsuit against the plaintiff with the Football Association's arbitration institute, in which it petitioned to require the plaintiff to pay punitive damages for the breach of the agreement signed between the parties, as well as to require him to compensate the team for damage to its good name and for the damages caused to it in the sum of ILS 150,000 (Appendix 1 to the application).

The parties' arguments please

5. The defendant claimed that upon the plaintiff's signing of the agreement, he waived his right to appeal to other courts and agreed that any claim related to the agreement would be heard at the Football Association's arbitration institution. In accordance with the law, the court must delay the proceedings in the action, unless there is a special reason why the dispute should not be heard in arbitration.  She further argued that the very fact that a claim was filed on her behalf to the Arbitration Institute tilts the scales towards a stay of proceedings, since there is a concern that contradictory decisions will be given in the two proceedings that are taking place in parallel.
6. The plaintiff objected to the request and argued that in accordance with the rulings of the labor courts, claims should not be delayed by virtue of the Sports Law/arbitration clause in the employment agreement on the grounds that the labor laws are of a cogent nature intended to protect the employee and disputes relating to the violation of these rights are not arbitratable.
7. The plaintiff added that the agreement signed with him was a standard agreement drafted by the Football Association. This agreement states that his salary is a total salary, in contravention of the Wages Protection Law, 5718-1958, and even the appendix to the agreement does not cure this defect and does not meet the requirements of the Notice to Employee and Job Candidate Law (Working Conditions and Selection and Acceptance Procedures), 5762-2002, and hence, the dispute should not be brought to the decision of an arbitrator.
8. In his response, the plaintiff referred to the judgment of the Honorable Judge Yafit Zalmanovich Gissin in labor dispute 70645-11-16 Itai Greenbaum v. Bnei Ramat Gan Basketball Department [published in Nevo] (January 29, 2017) (hereinafter - the Greenbaum case), in which a motion for a stay of proceedings in similar circumstances due to the existence of an arbitration clause was granted, and argued that the matter discussed there, which revolves around elements of a claim that are not rooted in the labor law that protects our case, in which the plaintiff's main claim is based on a violation of the protective rights, should be diagnosed.
9. The plaintiff added that arbitration proceedings are expensive proceedings in which the arbitrator's fees must be paid, a fee, and after a judgment is rendered, in the event that the defendant does not pay, the arbitrator's award must be brought for approval as part of a legal proceeding. Hence, this is a procedure that burdens low-wage workers.
10. With regard to the claim regarding the fear of contradictory decisions due to the filing of a claim with the Arbitration Institute, the plaintiff argued that the claim filed by the defendant was a completely different matter, and it stemmed from her claim that he had belatedly notified of his resignation and the damages that were allegedly caused to her as a result. The court must reject the defendant's attempt to abuse legal proceedings by filing a frivolous claim and an attempt to tie the proceeding in question to her claim.

Discussion and Decision

11. I will preface the beginning by noting that after considering the arguments of the parties, I am of the opinion that the application should be dismissed, and I will detail my reasons below.
12. With regard to a motion for summary dismissal, the case law is that a relief of summary dismissal is an extreme relief that will be granted sparingly and only in exceptional cases, since, as a rule, the court will prefer the clarification of the claim and the resolution of the dispute on its merits to its dismissal in limine, in order not to deprive a party of exercising his legal right (Civil Appeal 693/83 Shemesh v. Land Registrar, IsrSC 40(2) 668, 671; High Court of Justice 254/73 Tzri Pharmaceutical and Chemical Company in Tax Appeal v.  National Labor Court, IsrSC 28(1) 372).
13. In the case before me, apart from the existence of an arbitration clause, which I will discuss below, the defendant did not explain why, in her opinion, the claim should be dismissed in limine instead of a stay of proceedings and the transfer of the hearing to the competent institution. Since, a perusal of the statement of claim shows that to the extent that the facts stated therein are proven, the plaintiff has a cause of action against the defendant, this is sufficient to order the dismissal of the motion.
14. In relation to a request for a stay of proceedings - Section 5(a) of the Law states that a court to which a claim is filed in a dispute that has been agreed to be submitted to arbitration will delay the proceedings in the action, at the request of a party who is a party to the arbitration agreement. Section 5(c) of the Law states that the court may not delay the proceedings if it sees a special reason that the dispute should not be heard in arbitration.
15. In accordance with case law, rights granted to an employee by virtue of protective law cannot be waived and therefore should not be transferred to an arbitrator's decision (see Labor Appeal (National) 73/08 Mesika Diamonds Chino and Benayoun in Tax Appeal v. Araki [published in Nevo] (September 14, 2009) and the references there (hereinafter - the Yahalomi case)).
16. In Labor Appeal (National) 791/05 Doron Katz vs. Roy Sapir [published in Nevo] (4/5/06), the National Labor Court discussed the provisions of the law, taking into account the unique authority of the Labor Court, and ruled as follows:

"Arbitration is not a magic word, and even it has its limits and limitations.  A major limitation relating to arbitration originates in Section 3 of the Arbitration Law....  This provision is the anchor for the ruling of the National Court and the ruling of the Supreme Court that "a dispute between an employee and an employer regarding an employee's right under one of the protective laws in the field of labor relations cannot be submitted to an arbitrator's decision."