Labor Dispute (Tel Aviv) 28207-09-21 IT. Rehabilitation Ltd. – Avraham Matzliah - part 22

[See Civil Appeal 127/95 Fruit Production and Marketing Council v.  Mehadrin Ltd., IsrSC 51 (4) 337, 345 (hereinafter: "The Fruit Council Case")].

187. In the present case, it can be seen that the plaintiff made a broad and general request, without any reference to the requirements of the case law regarding the fulfillment of the conditions required by virtue of the ruling.

As for Iris Marketing and Sky, there is no special relationship between the company and them that justifies providing bills.  There is no relationship between the two as described in the matter of the Fruit Council.

188. As for Avi and Amir, it was not proven in the present case that they committed any of the torts listed in the Commercial Torts Law, and therefore the plaintiff's application for an order to provide accounts in accordance with the provisions of the Commercial Torts Regulations (Remedies and Procedures), 5760-1999, is hereby denied. In addition, we note that there is no evidence that Sky was established in order to receive consideration for money that Avi and Amir "accumulated" during the period of their employment with the defendant.  This argument raised by the defendant in its summaries (section 67 onwards) constitutes an extension of the façade, it was made in vain without any support to prove it.  Therefore, there is no room to discuss it and certainly it should not be accepted.
189. In light of all of the above, the plaintiff's claim for an order to provide Iris or Sky's accounts with various entities during the period of the defendants' employment, as well as an order for the provision of accounts that Iris Marketing transferred to the defendants, is rejected for the reasons listed above.

Refund of funds from my father's account

190. At the beginning of the discussion in this chapter, we note that allegations regarding unlawful enrichment and obligation of my father to return funds found in his account in the sum of ILS 159,000 are not mentioned at all in the amended statement of claim dated April 20, 2023. However, we found it to be clarified that since it has not been proven that the defendants enriched themselves unlawfully, since the elements of the offense consisting of three have not been proven: enrichment, causal connection, not in accordance with a legal right, and the plaintiff's claims regarding the defendants' unlawful enrichment, must be rejected.
191. Beyond what is required, it should be noted that, as will be detailed below, there is no support for the claim regarding the amount that the plaintiff stated was in the plaintiff's bank account. The claim was made in the framework of the plaintiff's summaries, and this is sufficient to dismiss it.  It should be noted that the focus is on the claim that the plaintiff received the documents regarding the plaintiff's bank account illegally, while breaking into his account and without his consent.  This issue will be discussed in the relevant chapter in my father's claim against the plaintiff.
192. According to the plaintiff, according to the subscription in my father's bank account statement, it can be learned that he received money from Yaakov during his work as commissions as a bribe, which he transferred to his soldier's home in order to cover up his alleged actions and exploits. The plaintiff further added that in practice, Avi planned to steal the plaintiff's customers and transfer them to Iris Marketing and Sky, which he planned to open "when the work of stealing the customers is completed." The plaintiff claims that between 2019 and 2020, Avi received cumulative payments in the sum of ILS 159,000 from various customers, which he must return and transfer to the plaintiff.
193. On the other hand, the defendants note that neither Yaakov nor Iris Marketing ever paid Avi commissions or any other payment for the plaintiff to purchase goods and products from Iris, and that Avi never transferred money through his soldier daughter, did not receive a monthly payment of thousands of shekels from Iris Marketing, and did not transfer money to Sky.
194. It was further claimed that Avi did not receive payments from customers and various sources, neither in the cumulative sums of ILS 159,000, nor in any other amount. It was claimed that the plaintiff broke into his bank account and now claims that it was money he received, with the money coming from his wife's salary, which is deposited in the couple's joint account.
195. The defendants clarify that Yaakov gave my father two personal loans in the amount of ILS 18,000. Loans that were returned to Yaakov on March 21, 2022.  According to the defendants, the loans were transferred from Yaakov's personal account to the couple's joint account as follows: a sum of ILS 10,000 on August 11, 2020, and an additional sum of ILS 8,000 on October 9, 2020.
196. An examination of the printouts shows that although the dates on which the transfers were made are different from those listed in the defendants' claims (the transfer in the amount of ILS 10,000 was made on July 12, 2020, and the transfer in the amount of ILS 8,000 was made on September 9, 2020), there were no payments that were transferred beyond that, and the claim that these were loans only was not contradicted.
197. Moreover, the claim that my father never transferred money through his soldier's daughter was also not contradicted by the plaintiff. In his testimony, Avi noted that: " Noam is a deep diver, she worked at the time, and she earned a sum with the approval of the army, by the way, sums.  And she passed them on to her mother so that she could close them in her savings, by the way, I recently found out." (p.  85 of the transcript of May 12, 2024, paras.  28-31).
198. In her summaries, the plaintiff indicates, inter alia, payments that were transferred from credit companies that credited his account. However, this source of deposit does not determine a share and construction that these are prohibited funds.  In addition, in his testimony, Avi noted that these sums were loans he had taken out (p.  70 of the minutes of May 12, 2024, paras.  19-24).  The fact that repayment has not yet been presented against those amounts does not exclude the possibility that the repayment date has not yet arrived or that the refunds are being made through a different mechanism.  In these circumstances, no conclusion should be drawn from the execution of the deposits from the credit companies alone.
199. In view of the aforesaid, the plaintiff's claim for the return of these funds is denied.

Offset of payments and severance pay

200. The plaintiff seeks to deny Avi and Amir the payments listed in the last pay slip from July 2021 (ILS 8,053 for Avi and ILS 1,543 for Amir) and to deprive them of all severance pay money that was deposited for them in the funds. The plaintiff petitions for forfeiture or deduction of the sums in her favor.
201. Denial of severance pay, in whole or in part, is regulated in sections 16 and 17 of the Severance Pay Law, 5723-1963. In accordance with the ruling, an employer who dismisses an employee and wishes to prove the existence of circumstances justifying the denial or reduction of compensation must show that the cause of denial of compensation existed at the time of the dismissal and constituted a motive for the dismissal (National Labor Court Hearing 33/3-2 Haim Zilber - Globes Ltd., PDA 4 153).
202. In this case, there is no dispute that Avi and Amir resigned from the workplace and were not fired at all, therefore, Avi is not entitled to severance pay, while in relation to Amir it was proven that the employment agreement includes an agreement regarding section 14 of the Severance Pay Law. Therefore, the question that needs to be decided in this chapter is whether the funds that have already been deposited in the funds for the severance pay component should be returned to the plaintiff.  It should be clarified that once the claim against Amir has been dismissed in its entirety, the hearing in this chapter will be held only with respect to my father.
203. Since we have determined that Avi breached the duty of good faith and fairness towards the plaintiff in such a way that a significant part of his work during his last period of employment dealt with the affairs of Iris Marketing, even though it has not been proven that he received compensation from her, we are of the opinion that these serious actions as described in the relevant chapter justify reducing the rate of severance pay deposits as detailed in the hearing of Avi's claim with respect to severance pay deposit differences. However, they do not justify a complete denial of the funds deposited in the funds in respect of this component.
204. As to the plaintiff's request to deny Avi and Amir the payments that were transferred to them as part of the last pay slip from July 2021. The plaintiff is entitled to deduct payments from the employees' last salary to the extent that there are existing and proven debts, including in exchange for advance notice, if it was not given.  In the present case, it was not claimed and therefore it was not proven that there are proven debts as aforesaid , therefore, these payments cannot be offset.

Compensation for Breach of Contract

205. Section 24(a)(1b) of the Labor Court Law grants the Labor Court exclusive jurisdiction to hear a claim that arose in section 62 of the Torts Ordinance [New Version], provided that it is a claim on the ground of a labor dispute.
206. In accordance with Section 62(a) of the Torts Ordinance [New Version], the tort of "causing breach of contract" is defined as follows: "A person who knowingly and without sufficient justification causes a person to breach a legally binding contract between him and a third person, is committing a tort against that third person, but the third person will not be able to be compensated for this tort unless he has suffered pecuniary damage as a result."
207. As stated in the judgment Civil Appeal 8483/02 Aloniel in Tax Appeal v. MacDonald, IsrSC 58(4), 314: "There are five elements of the tort of causing a breach of contract, as set forth in section 62(a) of the Torts Ordinance: a legally binding contract, breach of contract, knowingly causing a breach, and the absence of sufficient justification."
208. In the present case, it is necessary to examine whether, as the plaintiff claims, Iris Marketing or Yaakov caused a breach of Avi or Amir's employment agreement for the purpose of transferring transactions to Iris Marketing and harming the plaintiff.
209. There is no dispute that the employment contract between the plaintiff and Avi and Amir is binding and valid at the time of their employment. In addition, the evidence showed that Iris Marketing and Yaakov were given information regarding possible transactions, some of which "took shape" and matured into a transaction, and some of which did not.  However, in the circumstances of the case at hand, it was not proven that it was Iris Marketing or Yaakov who approached the defendants with the aim of causing a breach of the agreement they signed with the plaintiff.  There is no evidence that Yaakov or Iris Marketing was exposed to the employment contract between Avi and Amir and the plaintiff, and there is no evidence that Iris or Yaakov caused a breach of Avi or Amir's employment agreements or were aware of it in real time.  In addition, the plaintiff did not prove that financial damage was caused in the form of a decrease in income as a result of the actions of Avi or Iris Marketing or Yaakov, and accordingly the claim for monetary compensation was rejected.
210. Yaakov's testimony explicitly emerged that there was a conduit for transferring money to the plaintiff so that she could purchase the products from China. According to him, Tsafrir was afraid to send money to China and therefore used it as a conduit for the transfer of funds, and if the goods were not received, he could have turned to Yaakov to receive the money back (p.  16 of the minutes of May 30, 2024, paras.  20-27).
211. Later, Yaakov testified that at a certain point Tsafrir did not want to continue importing goods from China due to difficulties in raising money, and this is what emerged from his testimony: " That's a different story. That is, the first mass was masks, then there was a huge demand for gloves, and the same story was repeated, but Tsafrir didn't want to continue, he ended his story for his own reasons, he said that it was difficult for him to organize money and he was taking, he was lending money at interest on commodities in the market, he mentioned that he was taking money from one of his friends who is a lawyer, so I said to him, 'Tsafrir, you don't have to make an effort, that's the story, you want to stop, stop.' And so it was" (p.  17 of the transcript, paras.  9-14).
212. Despite the fact that the plaintiff's explicit consent to the transfer of the transactions that Avi transferred to Iris Marketing was not proven, this does not negate Yaakov's version that there is no dispute that he initially worked with the plaintiff and Tsafrir and served as a conduit for bringing the goods from China. In other words, as far as Yaakov and Iris were concerned, it was clear at the beginning that Tsafrir had approved the engagement with Iris and Yaakov in order for Yaakov to pave the way for the plaintiff's relations with China.  From this point on, Yaakov claimed that Tsafrir did not want to continue bringing Corona products, so he worked directly with Avi, and it was not proven that Yaakov or Iris knew at a certain point that the actions taken by Avi were contrary to Avi or Amir's agreement with the plaintiff, especially when at the beginning there is no dispute that the plaintiff worked with Iris Marketing and Yaakov.
213. In addition to the above, the plaintiff did not prove the damage caused as a result of Avi's activity with Iris Marketing and Yaakov. Moreover, as noted above, we do not have information regarding the expenses involved in executing the transactions and reliable information regarding the profit rate.
214. In light of all of the above, and since the plaintiff did not meet the burden of proving the claim that he caused a breach of contract, her claims against Iris Marketing or Yaakov are dismissed.

Damage to the Plaintiff's Autonomy and Reputation

215. The plaintiff petitioned for punitive compensation in the sum of ILS 500,000 for the defendants' conduct, the transfer of clients to Iris and Yaakov, and damage to her relations with Hadassah Hospital and other customers. The defendants denied their plaintiff's right to this component, since according to them, all their actions were with the knowledge and approval of Tsafrir.
216. After examining the plaintiff's arguments in this matter, we did not find that the plaintiff should be awarded compensation for this component. The plaintiff did not prove that Avi's conduct led to the loss of customers or a decrease in revenues or a negative change in the terms of the engagement with customers or agents, which are the result of damage to the plaintiff's reputation.
217. For our purposes, the matters that were determined by the Civil Appeal Authority 2291/12 Mordechai Halperin v. Haim Itzkovitz [published in Nevo] (June 25, 2012) held that:

"When it comes to libel, the words (or the act, as the case may be) constitute the main basis for establishing the cause of action, and without them there is none.  Therefore, it has already been determined that the plaintiff according to the law cannot be satisfied with the claim that the defendant libeled, and he must state in his statement of claim "the details of the words, written or oral, used by the defendant", which, according to him, give rise to the cause of action..."

218. An examination of the plaintiff's arguments on the subject shows that they are comprehensive, without the plaintiff bothering to detail how the actions allegedly harmed her reputation, and the source of the remedy or the facts that constitute a remedy of the type of "infringement of autonomy" was not clarified, and whether it refers to the impairment of the ability to determine the nature of the work, or whether it refers to the ability to manage the business and make managerial decisions. In addition, the reference to the judgment in the matter of Civil Appeal Authority 4657/21 Israel Meir Cohen v.  Construction and Development Company in a Tax Appeal (August 3, 2022) on a matter that is completely different from our case is also not clear.
219. In light of all of the above, the plaintiff's claim for compensation in respect of this component is dismissed.

The Counterclaim