The witness, Mr. Matzliah: I bought from Iris Marketing."
(p. 61 of the minutes of May 12, 2024, paras. 6-13).
- We are of the opinion that my father's version regarding the alleged private purchase is unacceptable, both commercially and legally. Avi did not present evidence that he did indeed privately purchase gloves from Iris Marketing, especially since it is difficult to reconcile his claim of private purchase with an order by Iris Marketing with a third party. It should be noted that my father's arguments in his testimony before us regarding the great commitment he felt to society at that time, which allegedly led him to carry out such a move, did not convince us (p. 63 of the transcript of May 12, 2024, paras. 14-28).
- Moreover, Avi's words contradict the subscriber in his affidavit that the Thai company had no connection to the plaintiff (even if indirectly) and that the purchase was for a client of Iris Marketing in Cameroon only (paragraph 76 of my father's affidavit). In addition, at the very least, my father's substantial involvement in this transaction is revealed when he signed it as a witness (Appendix 21 to Tsafrir's affidavit, as well as my father's confession on the subject at p. 60 of the minutes of May 12, 2024, paras. 1-5), and therefore it is clear that he is in a conflict of interest - contrary to his contractual obligations listed in his employment agreement, as well as a breach of the duty of loyalty and good faith, which justifies compensation without proof of damage to the plaintiff. We will discuss this later in the judgment.
- Moreover, Avi admits that he worked to transfer the Hadassah deals to Iris Marketing. Although this was not done due to Hadassah's refusal, it was not proven that the unsuccessful move was on Tsafrir's mind, and therefore this too constitutes a breach of the duty of loyalty and good faith, including a breach of his contractual obligations in a manner that justifies the award of compensation without proof of damage. We are aware of the fact that in practice the transaction was not executed, however, it is a breach of my father's contractual obligation to the plaintiff.
- Yaakov's version that "I do not, and never have, any business relationship with Hadassah Hospital. I have never spoken to any of the Hadassah people and I have not made any deal with Hadassah, which has been proven to be a false version. In the email correspondence dated September 19, 2020, Yaakov mentions to Guy, among other things, a price quote for gloves (Exhibit A/2). This indicates that this is a fundamental contradiction in Yaakov's version, which has implications for the reliability of his testimony.
- From the aforesaid it appears on the one hand that it was not proven that all of my father's actions were carried out with the plaintiff's approval, on the other hand, it was proven that Tsafrir was aware of some of them and had direct contacts with Hadassah.
- It should also be said that if an undertaking had indeed been given to Hadassah without Tsafrir's knowledge or consent, it is unlikely that the relationship between the parties would have continued to exist as usual and would even develop into an examination of the possibility of potential future cooperation with Avi as an independent. As it appears from my father's affidavit, he informed Tsafrir of his intention to open an independent company, and Tsafrir, for his part, suggested that Avi provide services to A.T. and even sent him a draft agreement (paragraph 10 of my father's affidavit, as well as Appendix A/2).
- We are aware of the undertaking given by my father for compensation and indemnification for the damages resulting from the transaction, therefore, the plaintiff is petitioning for payment in the sum of ILS 100,000 that she paid to Hadassah (see the email attached as Appendix 12 to Tsafrir's affidavit), but we are of the opinion that this undertaking has no binding legal validity.
- In accordance with the case law, imposing a monetary liability on an employee for damages caused as a result of his work will apply only where it has been proven that the damage was caused as a result of malice or at least as a result of gross negligence that includes indifference to the probability of the damage occurring, when the burden of proving malice or gross negligence is on the employer. This is based on the understanding that in the course of regular work, damages and human errors are often caused, which are part of the risks that the employer assumes in operating his business, and in general he can prepare for them, such as by taking out insurance or taking other precautionary measures such as control and supervision (National Labor Court Hearing 51/3-1 Yossi Ezer - A.R.D. Ltd., PDA 23 372; C.A. (Tel Aviv) 3942/04 Parnas David v. Avraham Lev (given on April 19, 2007); C.A. (Tel Aviv) 2499/05 Alexander Fergmanschichkov v. Balor Construction Works in a Tax Appeal (given on October 23, 2008); Labor Dispute 23612-11-19 Narkis Lubatin - S.H.R. Water Pump Systems in Tax Appeal (8.12.2022).
- It has not been proven before us that my father's conduct in the matter was malicious or that he was negligent in his work (although, as stated, he was in a conflict of interest in a manner that justifies the award of non-pecuniary compensation). We are aware of Appendix A/1, an agreement that was not signed at all, as well as Yaakov's version, who denied the agreement that my father had conveyed and claimed that this was the first time he had seen the agreement (page 24 of the minutes of May 30, 2024, paras. 12-15). In accordance with the aforesaid, the plaintiff's claim to charge the defendants for the payment that the plaintiff made to Hadassah Hospital in the amount of ILS 100,000 is hereby dismissed.
Interim Summary - The Plaintiff's Clients
- The totality of the evidence illustrates a consistent pattern of action by Avi, who took advantage of his position as an employee of the plaintiff to transfer transactions to Iris Marketing and Yaakov or to promote private businesses with it, in breach of his contractual obligations as well as the duty of good faith and loyalty to the plaintiff.
- The claim regarding Tsafrir's general instruction not to accept the orders for gloves was not supported by any evidence, neither in writing nor by the testimonies of neutral parties, and therefore it does not justify his actions. In these circumstances, my father's conduct should be regarded as a fundamental breach of the employment contract and the duty of good faith and loyalty, which justifies the award of compensation without proof of damage.
Transactions with customers and suppliers other than the plaintiff