"... that the employment contract is treated as a contract of cooperation based on a relationship of trust and the duty of loyalty that applies to the parties to it. The duty of loyalty, the duty of good faith, and the duty of fairness deriving from the employment contract constitute the basis for fair employment relations. The employee and the employer are not rivals on opposite sides of the fence, and their mutual duty is not to find themselves in a conflict of interest. For our purposes, the words of Vice President Barak-Ossoskin, recently, in the judgment in the Lifshitz case, are appropriate: "The relationship between an employee and an employer is a close and ongoing relationship. They require increased good faith and loyalty. Good faith is one in which each party not only takes care of its own interests, but also refrains from harming the interests of the other..."
In the matter of a labor appeal 1828-10-11 Vered Zafran Gani - Bezalel Academy of Art and Design, [published in Nevo] (November 28, 2012)) the National Court ruled that:
"The employee-employer relationship obligates the employee to act in a manner that is consistent with the trust required by his position, and the employer - in a manner that arises from the duty to care for the welfare of the employee... and the duty of fairness... These two are even beyond the obligation of 'good faith' in section 39 of the Contracts (General Part) Law, 5733-1973."
- In addition, in the matter of Labor Appeal (National) 2912-11-10 Menachem Mann - Sapir Sprint (November 14, 2011), it was held that even the use of information that does not amount to a "trade secret" but constitutes "confidential information" of the employer may be considered, in appropriate cases, a breach of the duties of trust and good faith.
- After examining all the evidence in the case, our conclusion is that my father in fact breached his duties of trust and good faith towards the plaintiff. The evidence in the case revealed a serious picture of the situation, according to which my father, while serving as a salaried employee of the plaintiff, in practice served his private interests as well as those of Iris Marketing and Yaakov. My father did so, while this was not apparent to the plaintiff, and thus breached his contractual obligations as well as the duty of good faith and loyalty at work, as will be detailed below. On the other hand, we found the allegations against Amir to lack a factual and evidentiary basis, and they should be rejected, as will be detailed below.
- According to the evidence, with the outbreak of the COVID-19 pandemic, Tsafrir instructed his employees to take advantage of the crisis in order to promote the company, thereby avoiding cutbacks, layoffs, and unpaid leave (Appendix A/23), Tsafrir's email to employees dated March 15, 2020). According to Tsafrir, during this period, the products that the plaintiff sold continuously to people with disabilities were greatly reduced, and it was almost impossible to carry out such transactions that required a meeting, matching, etc., and there was also a concern that all the employees would be put on unpaid leave (paragraph 35 of Tsafrir's affidavit).
- Tsafrir also declares that it was Avi who offered him to sell the plaintiff's customers complementary products required by them, such as gloves. Tsafrir further declares that in conversations he had with customers, the immediate need for supplementary medical equipment became clear and he immediately authorized Avi and all of the plaintiff's employees to take advantage of the connections in the world with suppliers and in general in order to purchase necessary equipment for the hospitals and the HMOs (paragraph 36 of Tsafrir's affidavit).
- Avi introduced Tsafrir to Yaakov as well as Iris Marketing, who had access to suppliers in China and through whom it was possible to order the goods to Israel and sell them in the Israeli market (paragraph 37 of Tsafrir's affidavit). There is also no dispute that during 2020, the plaintiff purchased Corona products through Iris Marketing in the amount of ILS 3,386,810, mainly in the month of March 2020 (Appendix 8 to the plaintiff's affidavit), when the circumstances of the termination of the engagement between the two are disputed.
- According to Avi and Amir, during this year, an unequivocal instruction was received from Safrir in April 2020 not to engage in the sale of gloves anymore, an instruction that he reiterated at a staff meeting in January 2021 (paragraph 64 of my father's affidavit, paragraph 27 of Amir's affidavit). According to my father's approach, as a result of Tsafrir's decision not to deal with gloves, he referred all the customers who requested protective equipment to Iris and Yaakov, and according to him, this was done with Tsafrir's knowledge and approval (para. 65 of my father's affidavit).
- Avi declares in this regard that "due to the plaintiff's self-financing difficulties and the fact that Iris did not agree to continue the arrangement, Tsafrir instructed the sales team in April 2020 not to accept any more orders for gloves." (Paragraph 54 of my father's affidavit). Notwithstanding the aforesaid, as a reference to this provision, Avi attaches a single text message in which Tsafrir refers to a certain offer in which he asked not to sell gloves (Appendix A/26). According to my father's testimony, the text message was even sent to another employee of the plaintiff named Smadar. This is what emerged from my father's testimony:
"The witness, Mr. Matzliah: Yes, 1:26. In a WhatsApp message, Tzafrir Zadok does not and will not have gloves 20/04/2020.