"Avi, what is the name of it, (talking together) the next day what is it called, the way I understood he spoke to Tsafrir or with you I don't know, you wanted to put us on unpaid leave and he had the option of putting us on unpaid leave or thinking of some other option, and my father, what is it called, thought of another option, maybe there is what they call it to get into the matter of the Corona equipment, Protective equipment for the corona, because in fact, maybe this is how it can be made to save us, the salespeople to protect us" (p. 32 of the transcript, paras. 20-26).
- Amir's testimony paints a picture according to which Avi took care of and worked hard to manage the sales department in an attempt to maximize its profits as much as possible while creating new work circles and products during the Corona period. However, beyond the management of the department in which he was entrusted, we were not persuaded that he had set a policy in the company or had independent discretion to make decisions on various issues, since each decision required Tsafrir's approval. Even with regard to the determining salary, it cannot be said that this is a very high salary that characterizes a senior management position.
- We will further clarify that we have not found room to accept the counter-defendant's argument that it was not possible to supervise my father's working hours. The case law is that the burden of proving the exception to the Hours of Work and Rest Law rests on the shoulders of the employer (Labor Appeal (National) 300271/98 Tepco Manufacture of Energy Control Systems in a Tax Appeal - Tal, PDA 35 703 (2000)). It was also ruled that it was necessary to examine whether the working conditions allowed supervision of the worker's work and not whether such supervision actually took place (see Labor Appeal (National) 15233-09-13 Advantech Technologies (Applet) in Tax Appeal - Zalusky [published in Nevo] (November 5, 2015)).
- No documentation was presented regarding the maintenance of my father's attendance records, and there is no indication from which it is possible to learn about his working hours, however, in the circumstances of the case at hand we find no impediment to the plaintiff from determining the actual time frame, even if part of my father's work was carried out outside the plaintiff's offices or at varying hours, and it was not proven that the company could not supervise my father's work. It was not clarified why it was not possible to require Avi to report daily of his working hours, and in particular to conduct a control of his working hours, most of which were carried out in the plaintiff's offices.
- Since we have determined that the Hours of Work and Rest Law applies to my father's work in accordance with Amendment 24 to the Wages Protection Law, in a claim for overtime pay, where the employer does not present attendance records, he is obligated to prove in this regard up to a number of 60 monthly hours (see section 26B of the Wages Protection Law). Case law has clarified more than once that when the employee met the initial burden of providing a factual version regarding overtime work, and the employer did not make a proper record of the hours of employment, the burden of proof and persuasion in this matter shifts to the employer. The burden imposed on the employee is to give a factual version, and he is not required to bring "first of all evidence" or "something to strengthen" his version, but rather a version supported by testimony (including an affidavit) that will stand before the court, on which the employee can be questioned [see Labor Appeal (National) 15546-05-11 Buskila v. Maayan Aviv Highway Ltd., given on February 24, 2015; Labor Appeal (National) 47715-09-14 Uzi Riani - Eliasi Marketing Ltd., given on March 29, 2017].
- An examination of my father's claims in the statement of claims, as well as his affidavit, shows that he did not meet the initial burden of presenting a factual version regarding overtime work. My father's claim is comprehensive and laconical, while demanding the maximum number of hours by virtue of possession, without specifying at all what hours he worked, on which days he worked and whether there were any changes in the format of his employment during the period of employment. In addition, during the entire period of his employment, no claim was ever raised regarding overtime work or entitlement to any remuneration as a result.
- We are aware that in his testimony my father claimed that he worked "countless hours without any connection, no hours of work and no rest, and no hours, I don't know what for A.T. " (p. 37 of the minutes of May 12, 2024, paras. 4-6), as well as his statement that "I worked at the beginning of the Corona and until the end of the Corona there were days when you worked 19 hours straight, at some point I stopped driving and Amir would take me and take me home because I just couldn't drive, it was dangerous. " (p. 63 of the transcript of May 12, 2024, paras. 16-18). However, in the absence of any details of the work in "countless hours" and his claim that he worked 19 hours in a row during the Corona period in the statement of claim or in an affidavit on his behalf, except in the framework of his cross-examination and in response to his work in general, these versions do not lift the initial burden imposed on my father, in order to transfer the burden of proof and persuasion to the counter-defendants.
- In light of all of the above, we are of the opinion that even though the Hours of Work and Rest Law applies to my father, his claim for overtime pay should be dismissed, since my father did not meet the initial burden imposed on him in order to transfer the burden of proof and persuasion to the counter-defendants .
Compensation under the Prohibition of Defamation Law