However, these assertions are true when there is no dispute as to the inability to use public transportation in those days. In our case, it was held that the employees were unable to prove on which days they were entitled to those refunds. This is because for some days, it was determined that public transportation was available to employees for the purpose of getting to or from work, and the employees even used it. The burden of proof shifts to the employer's shoulders when the employer claims "I have repaid", meaning that there is no dispute about the actual performance of the shift at times when there is no public transportation, and the dispute is about the actual payment.
It has already been determined that the travel fee component is a component for which proof of a certain level of certainty is required as to the very entitlement to that component and that it cannot be claimed by way of an estimate [Labor Appeal (National) 21590-04-20 Endorses Abed Araki in a Tax Appeal - Rami Bahari [Nevo] (December 6, 2020)]. When the employees did not meet this burden, the burden did not pass to the employer. According to the regional court's ruling, the workers did not present the data needed to calculate the travel fees. Therefore, the appeal against this element of the claim is dismissed.
- Improper pay slips - The workers claimed that the regional court ruled that the pay slips in the second period did not accurately reflect the payment paid to them, and despite this, did not award compensation for this component. Let us clarify that the Regional Court ruled as follows: "Segev did not consider the payment of gratuities as wages until the new contract was applied, in September 2019. In this respect, it reflected the payments it paid to the plaintiffs in the pay slips as they were" (paragraph 47 of the Regional Judgment).
An examination of the matter shows that although Segev paid the workers' wages in violation of the law, the pay slips reflected the manner in which the wages were actually paid. According to case law, there is no entitlement to compensation for pay slips, where the pay slips reflect the salary actually paid to the employee, even if the salary paid does not meet the requirements of the law [Labor Appeal (National) 3565-11-19 Hasharon Catering No. 1 (1993) in Tax Appeal - Shani Klein [Nevo] (January 6, 2021)]. Therefore, we found no reason to intervene in the determination that the employees are not entitled to compensation for defective pay slips.
- Payment of holiday pay - We believe that there is no room for the employees' appeal. The Regional Court in its judgment discussed this matter as superfluous, since the first reason referred to by the Tribunal was that the employees abandoned this matter after they did not cross-examine it and did not refer to it in their summaries.
Therefore, we too did not see fit to address the issue, since the employees abandoned their arguments in this matter.
- Conclusion
- The appeal is to be accepted in part as stated in sections 71-72 and 73.1 of the judgment. The proceeding will be returned to the Tel Aviv Regional Labor Court for the purpose of calculating the amount of the appellants' entitlement in accordance with our judgment beyond the amounts awarded by the Regional Court.
- The respondent will pay the appellants together legal expenses and attorney's fees ILS 10,000.
A declaratory judgment will be issued today, June 22, 2025, in the absence of the parties and will be sent to them.
| Varda Wirth-Livneh, |