Testimonies
- On 6 May 2024, 12 May 2024, 30 May 2024, and 11 July 2024, evidentiary hearings were held.
- On behalf of the plaintiff, Mr. Guy Greenfeld, representative of Hadassah Hospital (hereinafter - Guy), Ms. Galit Friedes, Director of Procurement at ALYN Hospital (hereinafter - Galit), Mr. David Yona, Director of Procurement at the Reut Rehabilitation Medical Center (hereinafter - David), Mr. Shlomo Petrover, Director of the Import Department at MDA and currently also Director of the Procurement Department (hereinafter - Shlomo), CPA Haim Yochai (hereinafter - Haim), And Tzafrir.
- On behalf of the defendants, the following testified: my father, Mr. John Zandbergen, the European export manager of the Polish company EM-MED Sp.zo.o.sp.k (hereinafter John and the Polish company respectively), Yaakov and Amir. The affidavit of Mr. Tawfiq Tayya, a former employee of the defendant, was withdrawn from the case after he did not appear for the hearing.
- In view of the complexity of the issues and in order to avoid unnecessary elaboration, at this stage the main arguments of the parties in the main claim will be summarized below, with the rest of their arguments being fully addressed in the relevant chapter.
The plaintiff's main arguments
- According to the plaintiff, after the end of Avi and Amir's employment, she discovered that a number of fraudulent and fraudulent acts had been carried out. Avi carried out serious actions in cooperation with Yaakov, the owner and manager of Iris Marketing, which connected the plaintiff with a contact in China for the purchase of goods and products that the plaintiff sold to customers in Israel. The plaintiff clarifies that my father, who was in charge of the relationship with the suppliers or marketers, introduced the plaintiff to Yaakov and Iris, who have connections with a person named "Alan" in China who has access to reliable factories through which the goods can be ordered to Israel.
- During the period of my father's employment, he served as the Plaintiff's Tenders Supervisor and Manager, and while fulfilling his position, he deliberately failed tenders submitted by the Plaintiff, as he simultaneously assisted Iris Marketing to access these tenders. Avi transferred to Iris marketing transactions that he executed in the course of his work in a conflict of interest, in violation of his employment agreement, as well as a breach of the duty of good faith, loyalty and mission, and in violation of the Economic Competition Law, 5748-1988 (hereinafter - the Economic Competition Law), a serious violation of the theft of a trade secret by virtue of the Commercial Torts Law, 5759-1999 (hereinafter - the Commercial Torts Law), and a violation of the provisions of the Enrichment and Non-Legal 5739-1979 (hereinafter - the Enrichment Law).
- Avi took advantage of his senior position with the plaintiff as a tenders manager and as someone who is responsible for establishing relationships with suppliers and/or hospitals and/or institutional bodies in order to capitalize for himself through Iris Marketing and his friend Yaakov - the plaintiff's transactions, the sale of products by Iris Marketing to the plaintiff's customers or the receipt of a commission from Yaakov and Iris Marketing during his work for the plaintiff as a manager of sales agents and relations with new suppliers as well as customers in the medical sector and in charge of the plaintiff's tenders.
- Avi caused the plaintiff's clients to make transactions with Sky and/or Iris Marketing instead of with the plaintiff, and also led to the failure of bids or tenders that he submitted on behalf of the plaintiff to various entities, and at the same time assisted Iris Marketing. In these actions, Avi caused a fatal blow to the plaintiff's employment relations with Hadassah Hospital and many different bodies, while sending documents and representations contrary to what was expected of him, in a way that he should have known that irreparable damage would be caused to the plaintiff's working relations with these bodies, which refused to work with the plaintiff and imposed a "stain" on her that caused the plaintiff enormous and tremendous damage. It was further argued that in light of the fundamental violation of the provisions of the employment agreement by Avi and Amir, the provisions of the agreement should be enforced.
The defendant's main arguments
- The lawsuit is a personal revenge campaign that Tsafrir is waging against Avi, for no longer working for him after attempts to get Avi back to work with him failed. When my father refused, Tsafrir began to sabotage every matter and relationship that my father had created in order to take revenge on him.
- Iris Marketing and Yaakov were deliberately involved in the statement of claim in order to create pressure on defendants 1-3, and especially on Avi and on the presumption of deep pockets.
Iris Marketing and Yaakov owe the plaintiff nothing and there is no legal and/or commercial relationship between them and her that establishes the plaintiff any cause of action or rivalry against them.
- Avi did not transfer transactions from the plaintiff to Iris Marketing without Tsafrir's approval. All of my father's actions and actions were for the benefit of the plaintiff and for the benefit of her profits and to maintain her good name among her clients. Only when Tsafrir instructed my father to stop dealing with protective equipment (especially gloves) did he send orders to Iris.
- Had the transactions been executed by the plaintiff, Avi would have been entitled to commissions from these sales, and therefore the claim that he transferred the transactions to Iris Marketing is inconsistent with Avi's interests as an employee whose salary is based on commissions. Not only did Avi not transfer any transactions that the plaintiff was supposed to make (but only orders that Tsafrir decided not to execute), but he never received any payment from Iris Marketing and/or Yaakov.
- It was Tsafrir who sabotaged the tenders, the orders and the plaintiff's income, as well as the page with all his might, and also gave an order not to receive them. The claim that the plaintiff suffered damage estimated at ILS 3,000,000 is baseless and baseless, when the plaintiff did not suffer any damage.
- Defendants 4-5 did not need orders of this kind as this is not their field of business, they did not receive any consideration for them and did so as a favor to my father who wished to use his relations with Yaakov in order to benefit the plaintiff. My father did not receive any salary or benefit from defendants 4-5 neither during the period of his employment nor afterwards.
- The plaintiff deals only with rehabilitative medical equipment and her attempt to portray before the court as if she has been selling protective equipment since 2020 to this day is not true. The plaintiff did indeed sell equipment during the COVID-19 period, only after much persuasion on my father's part in order to improve the plaintiff's situation in the worst year for the Israeli economy, and since the equipment provided by the plaintiff until that time was not needed during the crisis.
Discussion and Decision
- We will preface by saying that after reviewing the materials of the case and the testimonies of the parties, we have found that we accept the plaintiff's claim in part as well as the counterclaims in part, as will be detailed below.
- The pleadings, affidavits and appendices that were attached to the file are extensive and replete with data and documents, sometimes unnecessarily. It should be emphasized that our decision will focus on the main and substantive arguments, insofar as they are required to decide the remedies claimed.
- The parties, each for his own reasons, invested considerable efforts in selecting the information presented to the Tribunal, while we were under the impression that the manner in which it was presented left a partial picture of the situation and riddled with factual gaps. These discrepancies are reflected in the question of the plaintiff's ability to deliver the orders on time, the scope of the consent - if any, given to my father to transfer the transactions to Iris Marketing, the profit or benefit that arose to the defendants from these transfers, and more. In light of these circumstances, there is an increased need to be careful with the burden of proof on each party in relation to its claims and to attribute to it the evidentiary deficiencies that it has chosen to remain.
- According to the defendants, the plaintiff penetrated the mobile phones returned by Avi and Amir without authorization when they finished their work, and also made repeated intrusions into their email inbox and collected private and personal information from them. As a result, they petitioned as part of the counterclaim for compensation for an alleged violation of their privacy. It should be emphasized that the defendants submitted a "computerization" report regarding the hacking of my father's account, but no expert opinion was submitted and it is not possible to link the hacking to Tsafrir or anyone on his behalf, since no judicial order was requested to locate the addresses that were connected to his account.
- In addition, the defendants requested, under paragraph 6 of the counterclaim, to order the removal of the documents submitted by the plaintiff while impersonating and hacking into my father's email account, from the court file. However, as will be detailed below, with the exception of the documents of my father's bank account, we did not find that the argument was accepted. In addition, the defendants themselves refer to some of the documents in order to prove that the plaintiff consented to the transactions that were executed. Therefore, the documents remain part of the evidentiary material (except for the documents of my father's bank account) that is before us, and their weight will be taken into account in the framework of the decision.
- As for the defendants' claims regarding the forgery of some of the signatures on the documents presented to the court or forgery of documents - these claims remain unsubstantiated speculation. The defendants did not produce an expert opinion, did not summon a handwriting expert, and did not lay any other evidentiary basis that corresponds to the claim of forgery. In addition, Yaakov devoted a significant part of his testimony to the claim that some of the documents bearing his signature were forged and invalidated. However, this material claim does not appear at all in the affidavit he submitted, and as stated, neither he nor Iris bothered to summon a handwriting expert to verify the claim of forgery.
- It should also be noted that Avi admitted his connection to many documents that were presented with reference to various transactions. An allegation regarding the forgery of any of the documents was not raised by him in his affidavit, and therefore, we did not find any weight to be given to the claims on this issue.
Did Avi and Amir violate the Commercial Torts Law?
- Legislation and case law have established clear rules regarding the existence of a trade secret. Section 5 of the Commercial Torts Law defines a trade secret as follows:
"Business information of any kind, which is not in the public domain and which cannot be lawfully disclosed easily by others, the confidentiality of which gives its owner a business advantage over its competitors, provided that the owner takes reasonable measures to maintain its confidentiality."
- Section 6(a) of the Commercial Torts Law prohibits theft of a trade secret and subsection (b) defines what is theft of a trade secret as follows:
")b) Theft of a trade secret is one of the following: