Labor Dispute (Be’er Sheva) 32096-04-19 Sylvia Dahan Guetta – Association of Cities for the Environment Ashdod - part 21

I was surprised to find out that you think I don't have a bachelor's degree, even though you know that I'm studying for a bachelor's degree and I'm about to finish (already in the personnel committee, June 30, 2016) and even approved my participation in graduate studies. 

You could just ask me if you really wanted to promote me.

Attached is my bachelor's degree certificate.

I hope you will make an effort to integrate my promotion into the planned process.

Yom Tov"[189] (emphasis added - R.G.).

 Dr.  Rosen replied to the plaintiff on the same day:

"It is unacceptable to me that after a conversation in a criminal appeal, you correspond with me by email.

I will clarify what I said (emphasis in the original - R.G.)In a small organization like the Association, not everyone can be a manager, and preference is given to those with degrees that match their field of practice.  There are those in the association who have more advanced degrees and engineers who will not become department managers.  As a manager, I have a set of considerations that don't always coincide with the expectations of this or that employee.

To the best of my recollection, I not only worked to approve your master's degree studies, but I also wrote you a warm recommendation, which I hope helped you get accepted for your degree.  All along the way, I allowed you to go to advanced training.

The eligibility for the degree, which you just transferred to me, was filed in your personal file.

The second sentence in your email has no place and should not have been written at all.

The union's outline has been approved - the effort I will make is to reward you and other employees during on-call hours (emphasis added - R.G.).

With blessings"[190].

From the manner in which the plaintiff formulated her application, it can even be inferred that the plaintiff was aware not only of the very existence of the "reorganization" proceeding, but also of the details that arise within its framework.

1. It should be remembered that this correspondence came only about three months after the association's CEO, Dr.  Rosen, wrote to the plaintiff on July 14, 2016, a warm and detailed letter of recommendation for master's degree studies.  191] In this regard, we will add that, in accordance with our impression, this letter of recommendation is not a letter given in order to "fulfill one's obligation", but rather reflects a deep appreciation for the plaintiff's skills, qualities and contribution to the association out of a desire to benefit her.  The impression that arises is that the CEO acted professionally to promote the employees, including the plaintiff, made decisions within the framework of the managerial prerogative given to her and taking into account the total number of union employees and the existing budget, and the plaintiff's claims regarding "harassment" or "concealment" are inconsistent with this picture.
2. From all of the above, it emerges that the plaintiff was aware of the organizational change processes and not only as an "open secret"[192], and was even aware of the publication of the tenders, and her claim that the process was conducted "in secret" was intended to serve her claim retroactively, and did not reflect reality in real time.  Therefore, we reject this argument.

The plaintiff's claim for "tailor-made" tenders and discriminatory threshold conditions

1. In accordance with case law,[193] the court will not place its opinion under the discretion of the competent authority, as long as there is no defect in the exercise of discretion that goes to the root of the matter, and as long as the decision meets the requirements of administrative law, including reasonableness and proportionality.  Against this background, it was held:

"The Labor Court's judicial review of the decision of the competent authority in determining the threshold conditions is limited to exceptional cases in which the decision is unreasonable or proportionate, and there is a material flaw in it.  The court must also examine whether the decision-making process was conducted in a manner that is consistent with the rules of administrative law, and the relevant considerations were considered in a manner that would not harm the possible candidates for the position to a greater extent than is required.  The court will rarely intervene in setting the prerequisites and cancel a tender, but in examining the Authority's activity, we will also consider that setting prerequisites for a tender violates freedom of occupation and limits the ability of an employee, who is employed in the same workplace and does not meet the conditions of the tender, to advance in work to more senior positions.  It has already been determined in the case law of this court that the basic right to freedom of occupation includes the right to develop professionally in the workplace and in the professional field in which the employee is engaged, the right to advance to more senior positions and to apply for vacancies in the bargaining unit to which he belongs...  "[194].

1. It was further determined that when examining the reasonableness of the prerequisites, "it must be taken into account that this is a violation of a basic right, and therefore it is necessary to examine whether the infringement was done for a proper purpose, and whether it is proportionate and meets the standards of maintaining equality, conduct in good faith as required by the administrative authority, and upholding the rules of administrative law."
2. At the basis of the tenders laws is the requirement that the filling of a position be done in a proper, egalitarian and fair process, the purpose of which is to select the most suitable candidate for the position.  Against this background, a claim for a "tailor-made tender" concerns a claim of a material defect in the tender process, a defect that diverts the proceeding from its purpose and violates the principle of equality.
3. As for a discriminatory condition in a tender, the starting point is that the competent authority is entitled to set threshold conditions for the position.  However, this authority is subject to the basic principles of administrative law and the obligation to allow every candidate an equal and fair opportunity to compete for the position.  Therefore, a threshold condition will stand the test of the law where it is a relevant and proportionate condition, derived from the nature of the position and its needs.  On the other hand, a threshold condition that unnecessarily restricts participation in the tender deviates from the purpose of the filter of the prerequisites, and may be unreasonable.  In this regard, the words of S.  Herzig in his book Tender Law, Volume 1, Second Edition, p.  160 are appropriate:

"A threshold condition that unnecessarily restricts participation in the tender is unreasonable.  The purpose of the tender is to receive as many worthy bids as possible, and thus to achieve the best bid for the tender owner.  The prerequisites are intended to filter the proposals for initial screening and to exclude inappropriate bidders and inappropriate bids from the tender."

1. Accordingly, the examination of the legality of a prerequisite is not done in isolation from the role on which the tender revolves.  The purpose of the tender, the nature of the prerequisites, the nature of the position and the data required of the person who is expected to serve in it, the manner in which the decision was made to determine the condition and the degree of harm to those who do not meet it, must be examined.  It was further held that the state's decision to improve the public service by setting higher threshold requirements is, as a rule, within the scope of its discretion and prerogative as an employer.  Accordingly, the mere fact that a threshold condition reduces the number of candidates does not make it, in and of itself, a discriminatory condition.  The criterion is the relevance of the condition, its connection to the position, and its proportionality.
2. Alongside the aforesaid, a distinction must be made between an external tender and an internal tender.  An external tender is intended, as a rule, for the general public, and its purpose is to enable entry into the public service under conditions of equal opportunities and the selection of the most suitable candidate.  An internal tender is intended for the organization's employees internally, and it is intended to enable promotion within the service, to preserve the accumulated professional experience, and to provide the employees with a horizon of service.  In the Gonen case, the National Court noted the distinction between the external tender system, which relates to the admission of an external candidate into the service, and the internal tender system, which applies to the ministry's employees or, in certain cases, to all government employees, while emphasizing that the principles underlying the two systems are identical.
3. In addition to the aforesaid, in a claim for compensation that arose in tender proceedings, the claim of delay must also be examined.  In tender proceedings, it is of particular importance to turn to the courts in real time, when the administrative decision creates reliance on the winner, the Authority, and even the public.  Therefore, where a person claims that his win in the tender was deprived and refrains from turning to the enforcement track in a timely manner, and thus suspends his claim until it is no longer practical to change the result of the tender, this may be a disadvantage to him.  198]
4. The case law also determined that the "main way" for attacking a defect that occurred in a tender is an administrative petition filed close to the administrative decision, and the purpose of which is to correct the defect or enforce the alleged win.  Where a party chooses not to go down this path, but rather to wait and file a claim for damages only, the basis for a claim for compensation is significantly weakened.  The importance of the date of filing a claim in an administrative action for compensation due to a defect in the tender is great, and action must be taken "in real time".
5. At the same time, caution was expressed in the literature regarding the application of the delay claim as a sweeping threshold claim in a monetary claim.  In Omer Dekel's book, Tenders,[200] it was noted that there is a difficulty in seeing the delay, in and of itself, as an automatic ground for rejecting out of hand an administrative or civil action for compensation, in the absence of a clear source of authority for this.  However, it was emphasized there that this does not mean that the claim of delay loses its importance in a monetary claim.  Even in such a proceeding, a delay may indicate a waiver, failure to meet the obligation to reduce the damage, or a lack of good faith, and in the appropriate circumstances to justify a reduction in compensation, to the point of avoiding its ruling.  These words are consistent with the case law, according to which in tender actions real weight must be attributed to the date of the application to the courts, even where the relief claimed is financial.

From the general to the individual

1. After examining the arguments of the parties and the totality of the evidence presented before us, we have reached the conclusion that the plaintiff's claims regarding "tailored" tenders and discriminatory threshold conditions should be rejected.  The process of structural change, in the framework of which the tenders were formulated, was carried out in accordance with regulatory approvals and out of professional and practical considerations, which were intended to fill vital positions in the Association.  In particular, the prerequisites for carrying out a hazardous materials alert, which was perceived by the plaintiff as discriminatory, met the test of relevance and proportionality, since this alert was an integral and essential part of the responsibilities of the relevant positions, and required specific training and professional experience.  Below we will detail the reasons for this decision.
2. A careful examination of the chain of arguments reveals that similar to the claim regarding lack of transparency in the reorganization proceedings and the execution of tenders "in secret", the plaintiff's claim for "tailor-made" tenders and discriminatory threshold conditions, and in particular the condition regarding "appropriate training for the execution of standby, including the standby of hazardous materials", was not raised by the plaintiff close to the date of the structural change and the publication of the tenders, nor even at the management meeting on September 26, 2017.  The minutes of this meeting[201] indicate that the plaintiff raised general allegations regarding wage discrimination and on-call hours, as well as gender discrimination in the context of receiving on-call calls, but did not specifically refer to tenders that were published in the framework of the structural change as "tailor-made" or to the conditions of readiness as a discriminatory threshold requirement in them.
3. Moreover, both in the plaintiff's attorney's letter from September 2017, in the statement of claim filed on April 15, 2019, and in the plaintiff's main testimony affidavit of November 8, 2020, these claims were not explicitly stated.  In the statement of claim, the plaintiff referred mainly to her non-enrollment in the environmental alert system and her non-promotion to management positions on the grounds of lack of an academic degree, and not to "tailor-made" tenders or discriminatory prerequisites related to the training of hazardous materials in the new positions.
4. The argument regarding "tailor-made" tenders, including the claim that "the senior positions were tailored to suit the responsibilities that men fulfill"[202] (emphasis added - R.G.), as well as the claim that the prerequisites regarding "appropriate training for the performance of alert including alert for hazardous materials" were discriminatory and irrelevant to tenders, were raised for the first time in the supplementary affidavit submitted on December 13, 2022, 6 years after the publication of the tenders!.  This development of the plaintiff's claims, and in particular the considerable delay in raising such material claims relating to alleged defects in the tender process, weakens their weight.  The impression is that the plaintiff herself did not believe, at the time of the occurrence of the events, that these flaws occurred in the proceedings.  The plaintiff's arguments at the relevant time were regarding the lack of personal promotion in the new organizational structure and not in relation to tailor-made tenders and discriminatory terms set therein.  The suspension of these claims, until such a late stage, especially in the case of the plaintiff, who repeatedly approached both the CEO and the members of the management in connection with her salary and raised claims of discrimination and discrimination, and later also approached through legal representation and conducted a legal proceeding, is inconsistent with the principle of "real-time contact" that guides tender law and administrative law, according to which the "king's way" to attack a defect in a tender is a petition filed close to the decision.  The suspension of the claims significantly weakens the authenticity of the claims.
5. On the substance of the matter, Dr.  Rosen testified that there is no generic organizational structure for city associations, and noted that "the Association of Cities for the Environment is a different kind of bird from the traditional positions that exist in the municipalities" and that "these roles are very unique to the unions." Therefore, each association is required to professionally examine what is the most appropriate and appropriate organizational structure for its unique needs.  The organizational change process in the union was conducted for "two years with the Ministries of Finance and the Ministry of Interior for an outline for all the unions"[204], out of the need to "do something generic for the city unions because it is an animal that the Ministry of the Interior is not familiar with."
6. One of the main goals of the reorganization was to regulate the employment status and wage conditions of employees who performed on-call hours.  Dr.  Rosen testified honestly and explicitly in her testimony: "I really wanted to do this organizational structure, one of the reasons is to already eliminate this historic legacy of dozens of hours of standby."
7. This goal was also expressed at the management meeting on September 26, 2017, when the plaintiff's demand for payment of alert was raised, and against this background, Dr.  Rosen clarified: "The Association's dispatchers provide a response first and foremost to hazardous materials incidents.  They were recognized as both hazardous materials and environmental agents.  They have been on the drive for many years.  For most of them, the subject was defined as a condition in the tender and they came with the appropriate training...  An organization that the union has been leading in recent years is intended, among other things, to regulate the issue of wages and standby hours that were given in the past.  For years the same people have been on this alert." [207]
8. As stated above, the plaintiff's attorney's letter, which was sent after the management meeting of September 26, 2017,[208] it is also evident that the plaintiff herself knew that "the union's management is in the process of changing the organizational structure in order to regulate the issue of wages for employees who perform on-call and other employees." From the aforesaid, it emerges that the regulation of the issue of on-call hours and their compensation was an integral part of the goals of the structural change, as emerges from the testimony of the Director General and from the description of the situation by the plaintiff's attorney.
9. In the circumstances of the case, we accept Dr.  Rosen's testimony that the Association's decisions regarding the organizational structure stemmed from "the needs of the organization"[209] and not from discriminatory considerations, when the tenders "were not built according to a man or woman, or any other gender"[210].  The decision, which was accompanied by approvals from the Ministry of Interior and the Ministry of Finance, regarding the need for the "Director of the Human and Financial Capital, Air Quality and Climate Change Division, Education, Advocacy and Sustainability" and the "Director of the Infrastructure and Industries Division", is a purely professional decision, which has not been proven to be flawed.  This is consistent with the nature of the organization and its occupation.  It should be remembered that even before the tenders, even though all the employees were "technically" in the status of coordinators, Mr. Doron Lahav, who later won the tender as the director of the Human Capital Department, actually served as deputy director general and even as the plaintiff's supervisor, as stated above.  The plaintiff's claim that roles could have been defined differently is nothing more than an intervention in the prerogative given to the employer, which is merely claimed, and without a basis for the existence of unreasonable or improper conduct on the part of the defendant.  It should be noted here that at the time, there was another employee in the union who had "training to perform alert, including hazardous materials standby" (the employee who applied for one of the positions of department managers and even won it), so that the aforementioned condition was not the condition that prevented that employee (woman) from applying for a position at the level of a division manager.  In addition, there was another employee, the "Hazardous Materials and Noise Coordinator", who, according to the Director-General's remarks at the management meeting on September 26, 2017, had the ability to carry out a hazardous materials alert, despite the fact that she did not receive approval to carry out the alert and did not receive payment for standby.
10. As to the plaintiff's claim that in practice she held the position of CIO in the Association of Cities (Chief Information Systems Manager) and that this is a position that is parallel in the scope of his powers to a division manager, this claim should be rejected.  There is no dispute that during the relevant period there was no official standard for the position of Director of the CIO Division in the Association, and this position was not even required to be filled by the Ministry of the Interior in city associations.  It should be remembered that in practice, the plaintiff's role as a computer coordinator was 50% of the job, with the help of external parties as well.  It should be clarified that Dr.  Rosen did not see the plaintiff's position as a role of utmost importance to the core of the association's practice, and noted that "the cold sorting of our occupation is the supervision of industry, it is the protection of the population from the emission of hazardous materials, wastewater from the industry." She described the plaintiff's role as a "function" that is now superfluous.  [212] This view of Dr.  Rosen, as the CEO of the Association, reflects the professional priorities of the organization.  Dr.  Rosen clarified that the promotion in the new organizational structure was based on the "skills, professionalism, and education" required for the "needs of the organization." The plaintiff's desire that her position be defined as senior is, in fact, an appeal to the organizational structure that was determined.
11. As to the argument that the condition of "appropriate training for the performance of standby training, including the alert of hazardous materials" was a discriminatory condition, we clarify that a discriminatory condition in the tender is not any condition that makes it difficult for some of the candidates or reduces the circle of competition.  Such a condition will arise where the condition does not have a sufficient substantive connection to the position, where it deviates from what is required for the purpose of realizing the purpose of the tender, or where the manner in which it is determined or implemented violates equality to a degree that exceeds what is required.  On the other hand, a threshold condition that is determined on the basis of a real professional need, applies in an equal manner, and can be justified in terms of purpose, reasonableness and proportionality, is not a discriminatory condition.  In our case, there is no dispute that part of the regularization process is intended to regulate the many on-call hours that the workers have performed over the decades.  In view of the professional decision that the directors of the Division would carry out the standby, a demand that was part of their employment contract later on, it cannot be said that this is a discriminatory condition, even if this condition led to the plaintiff and other employees not meeting the terms of the tender.  In this regard, it should be said that although the plaintiff claims in her summaries that the defendant did not explain why it was decided that the directors of the division would be required to carry out alerts, Dr.  Rosen was not asked about this matter in her cross-examination.  In any case, this is a professional decision.
12. It should be noted here that the plaintiff wishes to present in the framework of the proceeding a representation as if the condition that prevented her from being able to compete in tenders was the condition of the training for the execution of the standby.  The plaintiff ignores the fact that the condition of the training to perform the standby that was set in the tenders for the positions of a division manager, was not the only condition that prevented her from accessing those tenders.  Thus, the position of Director of the Infrastructure and Industries Division required an academic degree in one of the following fields: Engineering, Architecture, Geography or Urban Planning.  There is no dispute that the plaintiff's bachelor's degree was in management and not in one of the required fields.  The experience requirements list: five years of experience as an environmental planner.  There is no dispute that this was not the plaintiff's area of business with the defendant.  Both tenders determined "preference for those with a master's degree or higher".  The plaintiff at that time had just completed her bachelor's degree, and there is no dispute that the two employees who applied for positions had a master's degree, many years earlier.  To this, it should be added that Mr. Doron Lahav, who won the tender for the manager of the Human Capital Department, served as VP and human resources coordinator at the defendant already in 2003.  In the circumstances of the case, the attempt to present the condition of appropriate kashrut for the performance of the alert as a "blocking condition" is subtle.
13. As for the argument that in the end the employees who actually filled the positions were the employees who submitted the tenders and even won them, there is no inherent impropriety in the fact that in an internal tender the bidders are employees who previously served as substitutes in the position.  This is one of the possible and natural manifestations of an internal tender, which is intended, among other things, to enable the promotion of existing employees.  The mere fact that an employee has accumulated previous experience in performing the position does not make his candidacy invalid, as long as it is not an advantage created due to circumvention of tender laws or due to closing the doors of bidding to others.  The question that needs to be examined is whether all the employees eligible to run have been given a real and worthwhile opportunity to apply; and if the terms of the tender were drafted in a substantive manner.  In the absence of such a defect, the very selection of an employee who previously served as a substitute does not indicate a violation of the principle of equality.  This is all the more valid in our case, when we are dealing with an organizational structural change intended to regulate the existing situation in the organization.  It should also be noted that this is a small organization of only 14 employees at the relevant time.  As part of the conceived procedure, 5 employees were promoted (2 division managers and 3 department managers).  As the INEC points out, it is not possible to create an organizational structure in which all employees, not even all veteran employees, will be promoted.  Things should be done on the basis of a professional examination and the needs of the organization.
14. After examining all the arguments and evidence, we found that the plaintiff's claims regarding "tailor-made" tenders and discriminatory threshold conditions should be rejected.  These material arguments were raised with considerable delay, six years after the publication of the tenders, in a manner that undermines their authenticity and weakens their weight.  The plaintiff's claim to fill the position of CIO equivalent to that of a division manager is also rejected, in the absence of an official standard for this position in the association at the relevant time and taking into account the scope of her actual position.

The Alleged Gender Consequence of the Structural Change

1. The plaintiff claims that she was discriminated against because of her gender in the structural change proceedings, and bases this on the statistical result of the tenders: 100% of the men who were employed by her predecessor (3 out of 3), compared to only 20% of the women (2 out of 9), a result that she claims attests to discrimination.  It emphasizes that the discrimination test is consequential and does not require proof of intent, and refers in this regard to the Plotkin judgment,[214] and argues that the Ministry of Interior approved the outline without being aware of the gender consideration.  The defendant, on the other hand, claims that there was no gender discrimination, and that the promotion was based on suitability for the position and not on gender, noting the absorption of 13 women and 3 men during Dr.  Rosen's tenure and the appointment of female CEOs.
2. Section 2(a) of the Equal Opportunities in Employment Law, 5748-1988 (hereinafter: the "Equal Opportunities Law") prohibits an employer from discriminating between its employees on the basis of their gender, inter alia, in terms of job admission, working conditions, promotion, and professional training.
3. In order to establish a claim for discrimination on the basis of sex with regard to the terms of employment, including wages and related benefits, a causal connection between a prohibited characteristic of the employee and the discriminatory decision must be proven.  In the Supreme Court's ruling, it was clarified that "the test for formulating a cause of action set forth in the Equal Opportunities Law is a test of causal connection.  The discrimination prohibited under this law is discrimination 'because' of some identity characteristic of the employee that the employer is prohibited from taking into account." Therefore, in order for a cause of action to arise under the Equal Opportunities Law, it must be shown that the protected characteristic (in our case, the fact that the woman is a woman) was one of the considerations taken into account by the employer.
4. The case law states that there is no requirement to prove "intent to discriminate", and the criterion for examining discrimination on the basis of sex is objective, so that a decision whose results are discriminatory in practice may be invalidated even in the absence of intent.  For our purposes, it is sufficient that the employer took into account, even if in good faith or lack of awareness (such as through an automated cognitive process), the employee's characteristics in order to determine that improper and discriminatory conduct under the law took place.  In this regard, it was held in the Plotkin case, as follows:

"Thus, both because of the difficulty of proving intent and mainly because of the place of the right to equality in our scale of values, it is not necessary to require proof of intent on the part of the employer and it is sufficient to show improper conduct.  This is not only due to the difficulty in proving intent - even if the employer had no intention, even if his intentions were good in his opinion, even then the discriminatory employer will be responsible."

1. After examining the arguments of the parties and the totality of the evidence, we reject the plaintiff's claim of gender discrimination that is learned from the statistical result of the structural change.  The plaintiff did not point to a discriminatory formulation, a gender directive, or any other concrete action that could indicate that the process of building the organizational structure itself was tainted by an improper consideration on the grounds of sex.  In any event, our case is not similar to the Plotkin case (to which the plaintiff refers in her summaries), in which improper conduct was indeed proven already at the preliminary stage of the employment relationship, and for this reason the burden was transferred to the employer.
2. Indeed, as the plaintiff claims, the test of discrimination is not a test of intent.  Even where non-discriminatory intent has not been proven, discrimination may be determined.  However, from here to the conclusion that any asymmetrical statistical result, in and of itself, attests to the existence of improper discrimination - the distance is great.  The result test also requires proof of the existence of a factual basis that makes it possible to link the alleged result to the unequal conduct.  No such infrastructure was laid before us.
3. It should be emphasized that the main comparison made by the plaintiff with the male employees throughout the proceeding was to her seniority, which she claimed was similar or identical to the seniority of the men who were promoted as part of the organizational change.  The plaintiff did not make a comparison between the nature of the roles, the need for each of the roles in the organization, the importance of each of the roles to the organization, etc.  As we have determined above, it has been proven before us that the structural change stemmed from professional and practical considerations on the part of the Association, including the need to regulate the issue of the many standby hours that were customary.  The prerequisites for performing hazardous materials alerts, which the plaintiff perceived as discriminatory, were found to be relevant and proportionate to the relevant positions, since performing this alert was an integral and essential part of the areas of responsibility and required specific training and professional experience.
4. The plaintiff did not prove that she met the professional prerequisites required for the positions of department directors (such as specific academic degrees and relevant experience), nor was she interested in the positions of department director due to considerations of salary and position level.  The plaintiff's comparison with male employees whose predecessor was promoted is irrelevant due to different employment circumstances, training, seniority, and the nature of different positions, and the fact that she herself chose to work part-time for many years, when they worked full-time.
5. Therefore, it was not proven that the statistical result claimed by the plaintiff stemmed from prohibited gender considerations or that there is a causal connection between her being a woman and her non-promotion, but rather professional and practical considerations, which were the basis of the structural change and the tenders.
6. In summary, after examining the parties' claims regarding the claim of discrimination in the structural change proceedings and in the tenders from 2017, and taking into account all the evidence and testimonies brought before us, including those relating to the transparency of the process, to the plaintiff's knowledge of it, and the threshold requirements that were set, we found that the plaintiff's claims of impropriety of the structural change process and the tenders were not proven, and the claim of discrimination in relation to them was not proven.  In particular, we were not persuaded that the structural change and the tenders were conducted in a vague or "secret" manner as claimed by the plaintiff.  On the contrary, the impression obtained is that the plaintiff was well aware of the organizational processes, and that her failure to apply for the positions of department managers, the level of positions in which she was allegedly interested, stemmed, inter alia, from her failure to meet the relevant threshold requirements at the time.  The failure to apply for the positions of department manager stemmed from her unwillingness to hold the position of department manager.

A.3.  The Claim of Violation of the Provisions of the Equal Pay Law for Male and Female Employees

1. The plaintiff claims[216] that the defendant violated the provisions of the Equal Pay for Male and Female Employees Law, 5756-1996 (hereinafter: the "Equal Pay Law"), by that her salary was lower than that of her male colleagues for equal or equal work.  The plaintiff bases her claim on the non-payment of full standby remuneration (air alert and emergency preparedness) similar to men, and on the failure to update the terms of her salary for the position of Chief Information Systems Manager (CIO) that she actually held, which she claims is equivalent to that of a division manager.  The plaintiff emphasizes that the law creates a presumption that wage gaps between an employee and an employee performing the same work indicate discrimination on the basis of sex, and asks for non-pecuniary compensation for this violation.
2. The defendant rejects the plaintiff's claim of a violation of the Equal Pay Law, and argues that it is incorrect and irrelevant.  The defendant notes that the plaintiff did not pay a fee for this component of the lawsuit, and claims that all the wage differences stemmed from practical and professional considerations such as work output, quality of work, seniority, training and education, and not for gender reasons.  The defendant adds that the plaintiff did not perform the same work as the male employees to whom she compares herself, and that her claims regarding her role as CIO are baseless.

The Normative Framework

1. Section 2 of the Equal Pay Law states that male and female employees employed by the same employer and in the same workplace are entitled to equal pay for the same work, essentially equal work or work of equal value.  The section further states that the arrangement applies not only to wages in the narrow sense, but also to any other remuneration given to the employee in connection with his work.  Section 3 of the Equal Pay Law further states that work will be considered equivalent to other work, even if it is not the same or essentially equal work, if they are of equal weight, inter alia in terms of the skills, effort, skill and responsibility required to perform them and the environmental conditions in which they are performed.  It follows, therefore, that the clarification of a claim by virtue of the law does not begin with the question of the rate of salary, but rather with the question of the comparison itself: whether the plaintiff has succeeded in establishing that we are working for the same employer and in the same workplace, who perform comparable work within the framework of one of the alternatives prescribed in the law.
2. The National Court noted the structure of the examination in the Kedar ^case[218] and in the Comverse ^case[219], where it was held that "^{the definition of the equality group and the determination of the basis of entitlement to equal pay must be done in a substantive manner, according to the practical content of the job performed and the important and main part thereof, as defined in section 3 of the law}."
3. As to the method of proof, where it is not the actual work, the plaintiff is required to establish that it is at least equivalent work within the meaning of section 3 of the Law.  In this context, the criterion set by law and case law is a criterion of "equal weight".  The proof is done, among other things, by examining the skills, effort, skill, responsibility and environmental conditions required to perform the work.  This was the case in the Al-Ashvili ^case,[221] where the National Court noted that section 3 does not require "that the facts being compared be identical or similar, and it is sufficient that it be proven that they are of equal weight"; Regarding the method of proof of equivalent work, the National House ruled: "Where the same skills are required, the same level of effort in performing the work; the same skill in execution; the same level of responsibility; The same environmental conditions, then we have jobs of equal value, in which the workers are entitled to equal wages."

From the general to the individual

1. After examining the arguments of the parties, they were not persuaded that the plaintiff had succeeded in laying a sufficient factual basis for establishing a cause of action by virtue of the Equal Pay for Male and Female Employee Law.  Its argument in this regard was argued in general, without laying out the necessary infrastructure for the purpose of applying the comparison mechanism set forth in sections 2-3 of the Equal Pay Law.  As stated above, the clarification of a claim by virtue of the Equal Pay Law does not begin with the wage gap itself, but rather with the question of the comparison itself.  First, the plaintiff must show that there is a relevant comparison group, and that we have before us an employee of the same employer and in the same workplace, who perform the same work, essentially equal work, or equal work.  Only then can the question of the gap be addressed and justified.
2. In our case, the plaintiff did not establish the basis of the comparison to which she claims.  Although the affidavit of her main testimony mentioned in various sections the names of three male employees (Doron, Itay and Haim) and their job titles, the plaintiff did not delimit the group of employees to whom she was comparing herself; It did not lay a foundation from which it can be learned that the requested comparison rests on a clear and substantive basis.
3. It should be clarified that the plaintiff, throughout the proceeding, refrained from clearly and in detail presenting in a clear and detailed manner who those specific male employees to whom she refers in her comparisons, and what their roles, training, education and employment experience were, in contrast to parallel data about her.  The argument sufficed, for the most part, with mentioning "headlines" of the male employees' positions and seniority, but did not include any real details of the tasks performed, the scope of the responsibility, the level of skill required, the nature of the professional interfaces, the conditions of performance, or the other elements by which it is possible to examine whether the work is comparable.

Even if it is prima facie possible to understand from the totality of the evidence who are the men to whom she relates, the plaintiff did not bring evidence in relation to their work, nor did she summon any of the employees to whom she wished to compare herself or other employees to testify, and no other evidence was brought that could shed light on the nature of their actual job.  Her main argument for comparison was based on the fact that they were "members of her generation", but this argument is insufficient and does not meet the substantive test required by the Equal Pay Law, which requires a material comparison of the nature of the work and its requirements.  Moreover, the plaintiff compared herself to employees who actually performed 80 hours of hazardous materials alert, which required education and skills that the plaintiff did not have at the relevant time, as detailed above.

1. In this context, it should be remembered that as detailed in detail above, at least two of the male employees to whom the plaintiff is comparing herself, Mr. Doron Lahav and Mr. Itai, worked full-time for about 20 years before the plaintiff moved to full-time employment, a figure that attests to a difference in seniority in a full-time position and in accumulated experience.  Mr. Lahav, to whom the plaintiff allegedly compared herself, served as deputy director general and coordinator of human resources as early as 2003, and even acting director general of the association between the years 1994-1996, senior and substantial positions that are not comparable to the plaintiff's position as a computing coordinator.  Dr.  Rosen emphasized that Mr. Lahav's promotion was based on his suitability and necessity for the Association, as he is a "cornerstone" and contributes greatly to the system.  [223] The employee with me had a Ph.D.  and worked in infrastructure and industries, a core area of the union, while the plaintiff at the time had not even begun her undergraduate studies.
2. In addition, the plaintiff did not sufficiently clarify what an "air crew" was and who was included in it, and why she was entitled to an additional 40 hours of air alert, similar to those men, especially given that her additional half of the job was in the field of recycling, which is allegedly not directly related to air alert.  Moreover, the plaintiff's cross-examination revealed that there were "contemporary" women who were also given 150 and 160 hours of standby, a fact that the plaintiff ignored in her main testimony affidavit and compared herself only to men and not to all the employees (women and men) who performed such calls.
3. The defendant, on the other hand, proved that all the considerations in the plaintiff's case were purely pertinent and professional, and that there were significant differences in the nature of the position, the need for a position in the organization, seniority in the relevant position, training or education between the plaintiff and the male employees to whom she relates.  Dr.  Rosen also clarified that the position of computer coordinator in the Association, as performed by the plaintiff, is "a fixed remnant of the past" and that most of the issue of computer maintenance is done today through legitimate outsourcing, so that the plaintiff's position did not justify more than 50% of the position.  The CEO also testified that most of the employees, including herself, preferred to turn to Mr. Lahav or an external technician with computer problems, due to the plaintiff's unavailability and unpleasantness.

Therefore, even if we assume in the plaintiff's favor that it is possible to "deduce" from her affidavit and summaries the identity of the employees to whom the comparison was intended, this still does not benefit her, since no factual basis was laid for examining the question of equal weight within the meaning of section 3 of the Equal Pay Law, and the plaintiff did not show what the skills, effort, skill, responsibility and environmental conditions required were for the performance of her work, and she did not make a real comparison between these components and the positions claimed to be equal.

1. The plaintiff's claim that she was entitled to be promoted to the level of a division manager and therefore her salary conditions should be compared to the salary conditions of the men appointed as division managers in the union, should be rejected.  This is in view of the above determinations regarding the failure to prove any basis for the plaintiff's eligibility for promotion to the position of division manager.
2. The conclusion from all of the above is that the plaintiff did not meet the initial burden imposed on her for the purpose of establishing a cause of action under the Equal Pay Law.  Her argument was raised in a laconic manner, without laying out the factual and evidentiary basis that the law and case law require.  Since the basis of the comparison has not been proven, and since it has not been established that it is the same work, essentially equal work or equal work, the claim by virtue of the Equal Pay Law should be rejected.
3. More than necessary, we will add that there is substance to the defendant's claim that the plaintiff's claims regarding compensation by virtue of the Equal Pay Law did not arise in the statement of claim and the plaintiff did not even pay a fee for this component, and this reason, in itself, is sufficient to dismiss the claim in relation to this component.
4. In light of all of the above, we order that the claim for payment of compensation for discrimination on the basis of gender and payment of compensation under the Equal Pay Law be dismissed. 

1. The Claim of Harassment and Occupational Harassment

1. The plaintiff's main arguments

The plaintiff experienced a series of abusive abuse, abuse and ongoing harassment on the part of the defendant, and in particular by the CEO, Dr.  Anat Rosen, which began even before the lawsuit was filed and worsened afterwards.  These relationships included discrimination, blocking promotion, contempt, ignoring her claims, and vengeful actions.