Labor Dispute (Tel Aviv) 28207-09-21 IT. Rehabilitation Ltd. – Avraham Matzliah - part 34

It was also ruled that failure to transfer deductions from the employee's salary to their destination may constitute grounds for lifting the corporate veil [Labor Appeal (National) 1137/02 Julius Adiv vs.  Rehavia Development and Hotels Company in Tax Appeal [published in Nevo] (19.1.03) (hereinafter - the Julius Adiv case), as well as Labor Appeal (National) 185/08 Ofir Strugo Insurance Agency (1990) in Tax Appeal - Dalia Berger [published in Nevo] (October 14, 2009)].

301. In the circumstances of the case at hand, we found that the elements of the offense in relation to Tsafrir were not proven. It was not proven that he deliberately avoided paying the workers' rights, since it was only in the statement of claim that he petitioned for the deduction of the funds for vacation and convalescence to which the plaintiffs were entitled, from the sums claimed by him in the statement of claim.  Moreover, as determined in the case law, non-payment of rights in and of itself does not lead to lifting the corporate veil and charging the company's debts.  It was not proven in the present case that Tsafrir acted in a manner that harms the purpose of the company, while taking an unreasonable risk in relation to its ability to repay its debts, and therefore, the counter-plaintiffs' claim to lift the veil and charge Tsafrir for the company's debts is dismissed.

Amir's lawsuit

302. As for the components of the claim for fictitious pay slips, the lack of confirmation regarding the period of employment, mental anguish, lifting the corporate veil and charging Tsafrir with the company's debts, the matters that were determined in Avi's case with respect to these components are appropriate in relation to Amir's claim, and therefore, Amir's claim in relation to these components should be dismissed.

The Determining Salary

303. According to Amir, his determining salary for the purpose of payment of severance pay and provident contributions should be viewed as including the sales commission, which part of the time was in a fixed component and a variable component, and in another part of the pay slips, this distinction was not made.
304. The counter-defendant denied this claim, and according to her, it is a bonus that is a personal goal and is contingent on the employer's profit, and therefore there is no basis to view it as part of the salary.
305. With regard to Amir's plaintiff's salary, we clarify that a perusal of the salary appendix determines in paragraphs 7-8 that a bonus was defined for a sales commission, which, as was clarified, similar to the relevant chapter in my father's claim, should be included as part of my father's determining salary. In addition, clause 4, which rightly claims the counter-defendant does not relate to 3% but to 2% of the sales, is also a sales commission that was calculated to Amir at a height of 2% of the sales.
306. A review of Amir's pay slips shows that kollel is a fixed component of a bonus of ILS 2,000 on a regular basis and a variable sales commission. At a certain point, these components were consolidated and called commissions.  Since there is no explanation and detail as to what the bonus is and for what it is given and whether it is a real bonus or a sales commission, we are of the opinion that as we have determined in relation to my father, this payment should be considered as part of Amir's determining salary.
307. The counter-defendant did not file a counter-calculation and did not contradict the plaintiff's claims regarding the calculation presented by him, which constitutes the basis of the salary together with the average commissions. Accordingly, Amir's salary base will be set at ILS 11,561.

 Severance Pay and Provident Benefit

308. As appears from clause 7.2 of the salary appendix in the case of Amir, he is entitled to deposits to the severance pay component at a rate of 8.3% of the basic salary. In light of our determination regarding the determining salary and from the time section 14 applies, the result is that Amir is entitled to severance pay in accordance with the calculation made by him and not concealed by the counter-defendant in the amount of ILS 34,220 after deducting the funds accumulated in the fund in respect of the compensation component.
309. As for the provident component in this matter as well, Amir's calculation is not concealed, and in the absence of a counter-calculation on behalf of the counter-defendant, we accept his claim for payment of provident deposit differentials in the sum of ILS 11,353.

Wages & Fees

310. According to Amir, he is entitled to wage differentials based on his labor of 3%, the amount of which is with him. In the absence of information regarding the commissions to which he was entitled, since he did not know which transactions were greedy and were closed, he put this component at a sum of ILS 40,462, and demanded an order to disclose the transactions he made during the period of his employment.  In his summaries, he abandoned the request for an order for the accounts and referred to the entitlement to the defendant's sum only.
311. According to the plaintiff, there is no basis for Amir's calculation, which is based on 3%, contrary to the agreement signed between the parties. In addition, it was not clarified in his affidavit how and when the amount of the commission was raised from the amount stated in the contract to the amount claimed by him, and even in his testimony he did not know how to explain his calculations in respect of this component, since he was not familiar with the calculation table that supports his claim in this matter.
312. A perusal of the employment agreement shows that a commission of only 2% was agreed upon and his claim to entitlement to 3% commissions is unclear, which has no mention in the scriptures and was denied by the counter-defendant. In his testimony on this matter, Amir testified that during the period of employment, the agreement was changed after he discovered that another agent was earning a higher salary than him (p.  30 of the minutes of July 11, 2024, paras.  14-17).  Later in his testimony, he was asked about the differences between the two payments and testified that he did not know.  Similarly, he did not know how to clarify the calculation mentioned in the table when it was not made by him (p.  31 of the transcript S1-2).
313. In these circumstances, in the absence of even prima facie evidence of entitlement to the sums claimed, the calculation of which has not been clarified at all, and on which transactions they are based, we determine that the claim should be dismissed.
314. With regard to the request for an order to disclose the transactions that Amir made during the period of his employment, a review of his summaries shows that this remedy was abandoned by him, and therefore the application for the order should be rejected.

Discrimination, bullying, a hostile environment, sexual harassment and invasion of privacy

315. Amir petitioned to charge the counter-defendants in the sum of ILS 200,000 for discrimination, bullying, hostile work environment, harassment and invasion of privacy. According to Amir, he asked to resign from the workplace several times due to disrespectful and humiliating treatment, while he was discriminated against in relation to other employees, but Avi convinced him to stay.  He claimed that he stayed at work many times because of my father, and on the day my father was about to leave, he intended to leave with him.  It was further claimed that after he was hired at the workplace, he discovered to his astonishment that another employee who worked with him in the same position received a higher salary of ILS 1,500.
316. In staff meetings with the participation of the employees, as well as in various conversations, Tsafrir would speak to him in derogatory, humiliating and condescending language, such as: "Shorten your stomach like my father", "Your physique affects your ability and the quality of your work" while ridiculing - statements intended to embarrass him.
317. Amir further claimed that Tsafrir had created a hostile work environment for him. Thus, during an argument that broke out between Amir and another employee of the plaintiff that took place during a meeting with the company's employees, the same employee used "shocking expressions" towards Amir, when Tsafrir heard and gave tacit backing for the ridicule and those remarks, and even dismissively claimed that Amir should not relate to them because the employee said so in a fit of anger.  The humiliating attitude was repeated in other situations, when Tsafrir did nothing.  He also referred to Appendix 7 as part of the correspondence between Tsafrir and his employees, in which it can be seen that Tsafrir is defaming Avi and Amir and legitimizing a hostile work environment.
318. According to Amir, the defendants used Amir's image in the framework of advertising on Facebook pages (to this day) and other means as a "model for heavy wheelchairs" - advertising that was made without his prior consent, as required and without his approval, while degrading him and using his picture without his knowledge.
319. According to Amir, he is entitled to compensation in the ILS 120,000 basket since he was discriminated against in his salary compared to another employee who reached the same position and shortly after he was hired; The counter-defendants allowed other employees to treat him in a degrading and humiliating manner, including in staff meetings, in the WhatsApp group, and also allowed sexual remarks and expressions towards his appearance while sexually harassing him and creating a hostile environment.
320. The defendants denied Amir's claims in the counter-statement of defense and added in the summaries of the reply that Amir agreed to the photo that was taken with his knowledge and uploaded to "Facebook" in particular, that he and the other employee, Smadar, were responsible for taking the photos and uploading them to the website. In addition, it is not a violation of privacy when Amir gave Hessto take the photo, and it has not been proven that this was done for the purpose of profit.  It was further argued that the claim of abuse was made in general and is not supported even at the outset of evidence, and therefore it should be rejected.

Discussion and Decision

321. As for the claim of discrimination, Amir's claims on the issues were made in a jumble without a distinction being made between the various grounds and relevant facts. Moreover, the plaintiff's claims regarding discrimination were made in vain and without clarifying why, according to him, there was wage discrimination between him and the other employee.  Amir also refused to mention the name of the employee and to bring before the court data that could support his claim, which seems to have been raised as an atmosphere claim.
322. Moreover, from Amir's testimony we learn that he approached my father, who instructed him on what to do about it, how to approach Tsafrir and express himself on the subject, since according to him, he was in a weak position, while my father explained and defended him (p. 27 of the transcript of 11 July 2024, paras.  20-25).  There is no mention of these words of Amir in his affidavit, and he refrained from mentioning whether he did indeed approach Tsafrir on the subject and whether there was a change in his salary.  In his testimony, he mentioned the name of Avichai Vaknin for the first time - it is not clear whether the same source informed him about the additional employee who allegedly earned more, or whether Avichai was the additional employee (p.  27 of the minutes of July 11, 2024, paras.  26-34).
323. As for Amir's claims regarding workplace bullying, it should be noted that this is a factual question that must be decided on the basis of an impression of the totality of the evidence and testimonies presented to the tribunal [Labor Appeal (National) 12029-11-13 Malek - State of Israel, Nuclear Research Campus [published in Nevo] (November 24, 2016)].
324. Since 2015, private bills have been submitted for the prevention of workplace bullying, the most recent of which is the Prevention of Workplace Bullying Bill, 5783-2023 (hereinafter: the bill). Section 3 of the bill states that workplace bullying is repeated behavior towards a person, in a number of separate incidents, that may create a hostile environment for him at work, including one or more of these behaviors, when it comes to an open list: “)1) Degrading, humiliating or harmful treatment of a person, including violation of the terms of employment due to grounds that are not relevant to the matter; (2) disrupting a person's ability to perform his or her duties, including by imposing unreasonable demands or creating unreasonable conditions for its performance; (3) subjecting a person to an atmosphere of fear and threats, including by shouting, cursing, false accusations, or spreading harmful rumors; (4) attributing a person's work, achievements and successes to another person or attributing failures not to a person other than his; (5) the person's professional or social isolation at work."
325. The National Court noted that this is a huge variety of behaviors whose boundaries are difficult to define in advance and precisely, while determining whether it is bullying is based primarily on findings of fact, in accordance with the specific circumstances of each case. The National Court also pointed to a number of guiding principles that were formulated in the case law, emphasizing that the case law is at its infancy:

"First, workplace bullying does not include a closed list of cases, and it is - as a rule - repetitive behavior or a number of separate incidents (even if they differ from each other), as opposed to a one-time incident.  Second, it is important to examine the plaintiff's claims as a whole, since examining the claims in isolation may lead to a missed mistreatment that is reflected in the complete and comprehensive picture.  Third, not every emotional distress caused to an employee due to a strained relationship with his co-workers or the conduct of his supervisor will be considered workplace bullying, since "a certain dose of friction and tension is an unavoidable necessity given the dynamic nature of the employment relationship.  Therefore, not every friction constitutes bullying, but sometimes its intensity will reach the level of bullying..." (Labor Appeal (National) 12069-06-20 Anonymous - State of Israel [published in Nevo] (March 25, 2021; hereinafter: The Anonymous case).  Therefore, it is required that the behavior constitute bullying even in an objective test, and it is not enough to have a subjective feeling of harm.  Criteria for the objective test have not yet been formulated, and it can be assumed that they will be based, inter alia, on criteria of proportionality, reasonableness, and relevance; the extent of the deviation from organizational and social norms; and the duty to provide the employee with a proper and respectful work environment that does not involve humiliation or violation of dignity, and all this while maintaining the delicate fabric of the relationship in the workplace, without creating "over-judgment", and while balancing against the authority and possibility of an employer or a supervisor on his behalf to manage what is required to be managed (and see in connection the case of Anonymous, and by analogy: Labor Appeal (National) 46548-09-12 Liran Avidan - Pelephone Communications in a Tax Appeal [published in Nevo] (March 31, 2015))."[Labor Appeal (National) 21934-02-21 Yitzhak Hakmon - State of Israel [Published in Nevo] (September 6, 2022)].

326. After examining the fabric of the testimonies with regard to the statements made against Amir, the defendants deny the statements attributed to Safrir, about which he was not questioned in his testimony before us. Amir noted in general Tsafrir's statements regarding his weight, and it is not clear whether they were all said at the same time or at separate events and when.  In addition, Amir was not summoned to testify about the same employee who he claims spoke to him harshly at the meeting in which Tsafrir was present.  We are aware of the fact that Tsafrir was not interrogated in this matter, except for a general denial of the person attributed to him.  However, it has not been proven that this is repeated behavior in a number of different incidents, and it has not been clarified that these are repeated statements frequently.
327. As for the claim that the abuse can be learned from the conversation in the WhatsApp group between Tsafrir and his employees , we emphasize that there is no room for the disparaging discourse and statements raised by Tsafrir towards Avi and Amir , however, this does not support the claim of abuse in relation to Amir during the period of his employment with the plaintiff.
328. As for the publication of the photo of Amir in a wheelchair in the Facebook group - there is no dispute that this photo appeared on the company's Facebook website during the entire period of Amir's employment. We are not persuaded by his testimony on the matter, that he allegedly found out about this only in advance of the trial (p.  22 of the transcript of July 11, 2024, paras.  1-2).  There is no mention of this in Amir's affidavit, and there is no claim that he was not aware of the publication in real time.  We have no indication that Amir asked to remove the publication or that he expressed any complaint against it, in a text message, email or any other exchange of letters.  Hence, Amir's arguments on the subject should be rejected.
329. As for Amir's claims regarding the right to privacy - according to Amir, from the moment the mobile device was hacked after it was returned to the plaintiff and all of his WhatsApp messages and intimate photos with his partner were restored, since even though he deleted the messages and received a notice that they had been restored, the counter-defendants should be obligated to compensate for the invasion of privacy.
330. The counter-defendants denied Amir's claims regarding the violation of privacy and claimed that they had the claims mentioned in the Privacy Law. It was further claimed that in the employment agreement with Amir, the matter was explicitly regulated, in the framework of which the monitoring policy was brought to Amir's attention for the purpose of exposing transactions outside of the plaintiff's activity.  Therefore, even if it was proven that the computer of Matzliah or Amir had been hacked, this was done in order to discover the smuggling of the transactions to Iris Marketing, and therefore to the defendants against absolute defense.
331. As for the claims regarding privacy, it should be noted that the analysis mentioned in the relevant chapter of my father's lawsuit is beautiful and appropriate for our purposes. Moreover, unlike the employment agreement signed with Avi, Amir's employment agreement includes the company's policy (clause 12) regarding the cell phone used by Amir and his agreement that he will not hear a claim for privacy protection since it is not a mixed use.
332. In addition to the above, as noted in relation to my father's claim regarding the right to privacy, Amir's claim also places the plaintiff's remedy on the provisions of the Protection of Privacy Law, without raising claims regarding the breach of good faith by the employer.

Conclusion

333. The plaintiff's claim against Amir is dismissed in its entirety.
334. The lawsuit against Iris Marketing and Yaakov is dismissed in its entirety, accordingly, the plaintiff must bear attorney's fees in the sum of ILS 30,000 , within 30 days from the date of the judgment.
335. The plaintiff's claim against my father is partially accepted, and accordingly he must pay the plaintiff within 30 days from the date of the judgment, the sum of ILS 120,000 for a breach of the duty of good faith, reliability and fairness.
336. The counterclaim filed by my father is partially accepted, accordingly, the counter-defendant must pay my father the following sums within 30 days from the date of the judgment:

For vacation days, a total of ILS 21,090.