The witness, Mr. Matzliah: Yaakov wanted to sell gloves through him, the man asked for a commission, this is a commission agreement.
Adv. Brotfeld: And why do you have to be a party to the agreement with Yaakov, why are you defined here as a client as well?
The witness, Mr. Matzliah: I am a witness to this agreement, I am not a signatory here.
The Honorable Judge Tzadik: Why do we need to be a witness to the agreement? Explain to me what it is until the agreement is reached.
The witness, Mr. Matzliah: People approached me with the intention of buying gloves from Yaakov, sorry to buy gloves, I referred them to Yaakov, from the moment I turned them to Yaakov I became a witness in my lot.
The Honorable Judge Tzadik: Until an agreement? What kind of procedure is this? What does a witness mean? What obligations do you have as a witness between Yaakov and a third party?
Witness, Mr. Matzliah: By virtue of my acquaintance with Yaakov,
The Honorable Judge Tzadik: What does it mean that you are a witness?
The witness, Mr. Matzliah: That doesn't mean much, it means that I'm a witness, it means that I met him with Yaakov for that matter or connected them.
The Honorable Judge Tzadik: Why do you need to be registered in the agreement?
Witness, Mr. Matzliah: Excellent question, I don't have an exact answer to that. I don't, here Yaakov undertakes to pay someone, I don't commit on his behalf,
The Honorable Judge Tzadik: Why are you there?
The witness, Mr. Matzliah: I don't have an exact answer as to why I was put in, I don't have an answer, I'm registered there, factually I'm registered, I don't know how to answer why I'm listed there."
(p. 75 of the transcript of May 12, 2024, paras. 16-39, p. 76, paras. 1-2, emphases not in the original).
- In our view, the fact that the agreement is not mentioned at all in my father's affidavit indicates a conscious attempt to conceal his part in the transaction. His statement that he was a mere witness to an agreement is contrary to a subscription to the fee agreement, which imposes clear contractual obligations on him. His late and stuttering explanations in the interrogation, according to which "I have no answer" as to the necessity of including his name, also indicate his lack of credibility. It should also be said that my father's testimony contradicts Yaakov's version that there is no direct connection between Tal Sharir, who is a party to the agreement, and Iris Marketing.
- In our view, my father's statement, according to which "people approached me with the intention of buying gloves from Yaakov", was not made in a vacuum, is not a mistake, and in fact he actually served as the long arm of Iris Marketing and not as a neutral party or merely a "witness", as he claimed. In any case, my father admits that people approached him to buy gloves and that he referred them to Yaakov.
- It should also be noted that in his testimony Yaakov avoided referring to this transaction, stating that he did not know the same Tal Sharir, and that he had no answer on the matter, and that he had to clarify the matter (p. 41 of the transcript of May 30, 2024, paras. 1-11).
- In these circumstances, Avi's refusal to refer to the agreement in his affidavit, as well as his unreliable explanations in the investigation, indicate a breach of the duty of disclosure, the duty of good faith and loyalty, as well as a clear conflict of interest in violation of Avi's obligations as arising from the employment agreement. The misleading representation that he tried to create in the proceeding, as if he acted as a witness, is inconsistent with the language of the agreement as well as with additional evidence that testifies that he actually promoted a parallel business, while he was an employee of the plaintiff. This conduct joins all of my father's previous acts that justify the award of compensation without proof of damage in favor of the plaintiff.
- If so, in this case, it appears that the plaintiff lost customers who, according to Avi, approached him and he in turn referred them to Iris Marketing. At the same time, the plaintiff did not detail the estimated financial damage in connection and did not prove that she was entitled to the amount claimed by her, therefore, the aforementioned is not sufficient to justify the award of monetary compensation.
The Brilliant Company
- The evidence shows that here too, Avi was active in the ranks of Iris Marketing. The plaintiff attached as Appendix 37 a copy of an agreement for the sale of gloves between the company and Iris Marketing. No email correspondence from my father or any other evidence linking my father to this transaction was attached. At the same time, Avi admits in his affidavit that he was involved in the transaction, but claims administrative assistance only out of gratitude, and to his knowledge the transaction was not realized, while claiming that it was an engagement of Iris Marketing that had no connection to the plaintiff (paragraph 81 of my father's affidavit).
- Yaakov states in his affidavit that the transaction did not take effect because the customer regretted it and that the transaction had no connection to the plaintiff (paragraph 26.10 of Yaakov's affidavit). In his testimony, Avi admits that he knows who Hambrik is, and notes that it is a company that operates in the field of selling cleaning products (p. 78 of the minutes of May 12, 2024, paras. 17-18).
- Although according to Avi's approach, the company operates in the field of cleaning products, it clearly appears that this is an agreement for the sale of gloves, a field in which the plaintiff operated. This transaction indicates the continuation of my father's activity. The argument that this was purely technical assistance is not convincing and is not supported by any evidence, even prima facie, and strengthens the conclusion that my father's involvement in Iris Marketing was not random, but rather part of an orderly business system that was managed in parallel with his work for the plaintiff.
- If so, Avi served as an active entity promoting Iris Marketing's sales, and thus added another layer to the body of evidence attesting to the breach of the duty of good faith and loyalty, the conflict of interest in which he was found, all while violating his contractual obligations in a manner that justifies the award of compensation , not proof of damage , which will be detailed later in the judgment.
- However, the plaintiff did not meet the burden of proving that Avi referred the company to Iris Marketing and no evidence was presented on the matter. Moreover, Yaakov's claim that the transaction was not carried out was not contradicted. In addition, the plaintiff did not bother to summon a representative of the company in order to testify on the matter.
The Swearing-in Deal
- The "Hamashvia" transaction also indicates Avi's direct involvement in Iris Marketing's business, when he forwarded comments to an engagement agreement between Iris Marketing and this company (Appendix 92 to Tsafrir's affidavit). Avi admitted that he was involved in this transaction while claiming administrative assistance, and that it was an engagement with Iris Marketing that had no connection to the plaintiff, and that to his knowledge it did not take place (paragraphs 80-81 of my father's affidavit). At the same time, in his testimony, my father confirmed that:
"Yaakov wanted to sell Mr. Hananya gloves, Mr. Hananya sent him some kind of agreement and I gave comments about the agreement, technical comments."