In her summary, the plaintiff emphasizes that the internet alert hours that were attached to the job performed by the employee who left (25 hours) were not added to the plaintiff's position "even though she was required to perform the exact same job." In the summaries of the response, the plaintiff claims that the defendant confirmed that to this day, social media alert hours are paid to another employee, even though the plaintiff was told that these were canceled. [119] According to her, the defendant did not explain his decision not to grant her the on-call hours that were attached to this position, when it was carried out by the employee who left, and did not explain why the hours "became redundant" when the position was transferred to her. [120] This refusal to provide an explanation, together with the fact that the on-call hours were considered a "wage increase"[121], constitutes a breach of the duty of good faith.
Against this background, the plaintiff is claiming wage differentials for 25 hours of standby that she was entitled to as of April 1, 2014.
- The defendant claims that the plaintiff is not entitled to additional alert websites, social media, and public inquiries, and that the plaintiff "throws" claims into the air in a manner that indicates a lack of understanding or lack of good faith. In this regard, the defendant notes that the plaintiff claims that she was "prevented" from receiving hazardous materials training for the purpose of receiving hazardous materials alert hours, that she is entitled to additional air alert, and that she is also entitled to the alert of websites and social media. According to the defendant, the plaintiff did not prove her eligibility for these alerts and did not present any legal basis for her claims.
- After considering the arguments of the parties, we accept the defendant's position that the plaintiff has not been able to prove her entitlement to receive the alert of internet sites, social media and public inquiries. The impression is that the plaintiff claims to be entitled to standby payment "from everything that can be reached", in an attempt to "fish" a standby that will suit the purpose of raising her salary. As the plaintiff noted at the management meeting on September 26, 2017: "...Some employees get more than me. I didn't ask to be a manager, but more salary, and I don't care what it's called, standby or increment."[122] (emphasis added: R.G.). It is not clear how the plaintiff believes that her role should/could have included, in fact, 80 hours of air alert, 80 hours of air alert, 25 hours of website and social media alert, and later, as we shall see, also 40 hours of computer alert.
- In the circumstances of the case, we accept the defendant's position that the plaintiff's argument that the defendant did not provide an explanation as to why the on-call hours "became redundant" when the position was transferred to her should not be accepted, since at the time the plaintiff began to perform Ms. Mark's job at 50% of the time, the plaintiff had already received 40 hours of air alert. In this regard, the Director General clarified in paragraph 90 of the affidavit of her main testimony, and this statement was not contradicted, that if the previous employee, Mrs. Mark, had received any kind of monthly alert, she would not have been allowed additional hours of alert for the subject of the media. In this regard, it should be noted that while the plaintiff received 40 hours of on-call part-time, Ms. Mark received 25 hours of full-time standby. We will addition, what has already been said above, that when the scope of the plaintiff's position was increased to 100% of the position, it was made clear to the plaintiff that during the period of her full-time employment, the terms of the remuneration would be in accordance with her rank in the scope of a full-time position, and the on-call hours would be 40 hours of air alert per month. The plaintiff knew very well that she would not be paid standby hours beyond the 40 hours of air alert to which she was entitled by virtue of her position prior to the increase in the scope of the job.
- Moreover, even though the plaintiff wishes to attribute to her the full hours of standby to which the employee Ms. Mark was entitled, and despite the fact that the plaintiff claims in her summaries that she performed "the exact same job"[123], in accordance with Ms. Rosen's statement, the plaintiff was not accepted responsibility to perform the full role of Ms. Sharon Mark. In this regard, Dr. Rosen testified: "The plaintiff received some of the tasks assigned to Ms. Mark, and accordingly, the scope of the plaintiff's position increased... From a rate of 50%... to a rate of 100%." [124] Moreover, the plaintiff herself confirmed in her cross-examination that she did not perform all of Ms. Mark's duties, but rather "most of her duties, I did not say everything."[125] Dr. Rosen also clarified that the plaintiff had indeed performed additional tasks that were previously Ms. Mark's responsibility, but added that "over time" the plaintiff's role as a computer coordinator was gradually reduced due to the entry of service providers in the field of computing, and that the plaintiff was given freedom of action to divide the work according to need. [126] In the circumstances of the case, the plaintiff's claim that she was entitled to all the hours of alert to which Ms. Mark was entitled should be rejected. It should be emphasized that the plaintiff's claim regarding the entitlement to a website and social media alert is based on the claim that the previous employee received 25 hours of standby while performing this position, and not on the need to perform such alert on the job.
- It should be added that Dr. Rosen also testified about the "significant gaps in abilities, skills and satisfaction" between Ms. Mark's work and the plaintiff's. [127] Dr. Rosen explained that Ms. Mark set up the website and updated it proactively, as opposed to the plaintiff who updated it only when requested. [128] DR. ROSEN ADDED THAT ALTHOUGH THE PLAINTIFF UNDERWENT A TRAINING COURSE IN THE "WORD PRESS" COURSE AT A COST OF ILS 3,440 AT THE EXPENSE OF THE ASSOCIATION IN ORDER TO DEVELOP INDEPENDENCE IN THE FIELD, SHE DID NOT DO SO. [129] These arguments were not contradicted either.
- The defendant compared the plaintiff's social media activity to that of the Department of Education, noting that the Department of Education published about two hundred original "posts" in 2020 and opened an Instagram account with about fifty "posts" and "stories." This is in contrast to only six "posts" published by the plaintiff, which were also not original, according to the defendant. In practice, the issue of social media advertising is concentrated in the Education Department and is carried out by the department's employee and the union's spokesperson.
- As to the plaintiff's claim regarding work she performed from home, there is no dispute that the plaintiff received compensation for each additional hour of work reported for updating the website. Dr. Rosen clarified that the plaintiff was not required to be on alert or available 24/7 for this position.
- Regarding the alertness of public inquiries, the defendant clarified that the employee who served as the coordinator of public inquiries received compensation for the 25 hours of alert that she was required to handle inquiries. In contrast, the plaintiff was not required to handle the inquiries at all, but only to transfer them to the care of that employee, and therefore there was no justification for additional compensation beyond the overtime hours she actually received. Even for this position, the plaintiff was not required to be on alert or available 24/7.
- Against the background of the aforesaid, the claim for payment of websites and social media standby is dismissed.
Computer Alert
- The plaintiff claims that she is an information systems manager and is responsible for all the computer systems in the association, a position that includes the operation of servers, communication networks and computer equipment. According to her, she began working as a computer coordinator with a single server, but with the development of technology, the number of computers, servers, and peripherals under her responsibility increased. It is the only one that fulfills this role and provides a solution for all computers in the Association, including mobiles, landlines, and mobile phones, and the control center of the monitoring system, at any time of a malfunction and at all hours of the day, including holidays. [130] Thus, for example, she was required to come to the association on Yom Kippur before the affidavit was submitted on her behalf in order to deal with the malfunction. The plaintiff claims that in the cross-examination it was proven that the plaintiff was required to be at the defendant's disposal beyond working hours and at exceptional times in view of computer malfunctions, including general malfunctions, problems in operating computers, and server failures. [131] The burden on her required her to be available at all hours of the day, including from home and on standby, in order to deal with computer malfunctions, and therefore it was necessary to increase the hours of standby. Against this background, the plaintiff petitions for payment of 40 hours of computer standby per month as of October 31, 2010, compared to her claim for computer personnel in the Ashdod Municipality who receive between 40 and 90 hours of standby. [132] The plaintiff proved that she performed computer maintenance, for which it is customary to receive 40 hours of alert in the Ashdod municipality, which is the local authority on which the association relies [ 133]
- The defendant claims that the plaintiff is not entitled to additional payment for computer standby. According to him, the air alert hours that the plaintiff receives are already intended for the computing component of the monitoring and computerization stations in the Association. The defendant claims that the plaintiff does not perform alert and does not show minimal responsibility, does not open emails from home even during prolonged absences, and her only messages from home relate only to absences. Most employees turn to Mr. Lahav or the external technician in the event of a malfunction, and not to the plaintiff, due to her unavailability and unpleasantness. The defendant rejects the plaintiff's comparison with the Ashdod Municipality and argues that due to substantial differences in size between the entities, the comparison is irrelevant.
- In the framework of her cross-examination, the plaintiff did not know how to refer to a normative source or agreements that anchor her alleged entitlement to computer alert, nor did she know how to specify a fixed number of hours to which she is entitled for this alert. When the plaintiff was asked, "You know that standby is not a component that appears as something that must be given to the employee, do you know that? Or do you think that alert is something that must be given to an employee?" To the defendant's counsel's question, "By what virtue? By virtue of what?The plaintiff replied, "By virtue of the fact that today without a computer, people cannot work." Also, when she was asked, "And how, how much, how many alerts are given to such a manager? Fixed somewhere? It says that a computer manager will get 20 hours of standby?The plaintiff replied, "No, what is called, what is customary, there is"[136], thus confirming that there is no fixed provision regarding the number of hours. This testimony strengthens the defendant's position regarding the lack of basis for her claim of entitlement to a separate computer standby.
- Dr. Rosen stated that the plaintiff's role as a computing coordinator focuses primarily on operating a system of subcontractors who solve physical problems on location or at a distance, and that this position is significantly less active than that of a computing coordinator in a parallel association of cities. [137] Moreover, Dr. Rosen testified that the position of computer coordinator in the association is "a fixed remnant of the past", since today the maintenance of computers in bodies of the size of city unions is done through outsourcing. [138] Dr. Rosen further noted that the plaintiff does not perform alert and does not show minimal responsibility, does not open emails from home even during prolonged absences, and her only messages from home relate only to absences. [139] Dr. Rosen also testified that most of the employees, including Dr. Rosen herself, preferred to turn to Mr. Lahav or the external technician in the event of a malfunction, rather than to the plaintiff. Dr. Rosen's testimony on these matters is supported by the allegations raised against the plaintiff already at the management meeting on September 26, 2017. The plaintiff's answer was: "There is a bank of hours and Binat is taking advantage of the bank of hours." The plaintiff did not deny the claim that the union's employees preferred not to contact her.
- We also accept that the comparison made by the plaintiff between the union and the Ashdod municipality is irrelevant, since the union is a small body, in which at the relevant times of the lawsuit 14 employees worked, compared to the figure presented by the defendant, which is not hidden, of more than 3,000 employees in the Ashdod municipality. This issue even came up before the Association's management at a meeting on September 26, 2017. When the plaintiff turned and asked, "I want you to check with the Ashdod municipality what is happening there. We are going according to the Ashdod Municipality's regulations", Mr. Kobi, a member of the board, replied: "I suggest that you do not try to get close to the Ashdod Municipality. You're here in heaven. Don't even try to compare your conditions to those of employees in the Ashdod Municipality..." At this point, the plaintiff asked, "Why do they call me when I'm sick?And Mr. Kobi responded: "Here in the Ashdod municipality, people from the environmental unit go out at night without hours of alert." Later, the CEO explained the differences between working in the labor union and working in the Ashdod municipality:
"...When did you physically come to fix a computer malfunction? You get overtime for emails you make at home and I don't visit you. I approve to you all the overtime you do without checking if they are justified. The association adopts the appropriate procedures of the Ashdod Municipality in order not to reinvent the wheel. The association does not "copy and paste" everything that is done in Ashdod. We are a small body with other needs, and I don't compare the computerization system in the union to that in a big city. I also don't know who gets computer alert in the municipalities, what the salary is and what the compensation is. In any case, today alertness is not a tool for improving wages. Alert must be carried out in practice"[142] (emphasis added - R.G.).