Labor Dispute (Tel Aviv) 55553-06-22 Guardianship.BC Technologies Ltd. – Coral Ghibli - part 5

Bullying

68. Despite its prevalence and severity, the phenomenon of workplace bullying has not yet received binding legislative expression in Israel. Private bills on the matter have been submitted over the years, the most recent of which[43] defines bullying as repeated behavior  that violates the employee's dignity and creates a hostile work environment.  Bullying includes a wide range of behaviors, such as humiliation, unreasonable demands, threats, spreading rumors, social ostracism, and more.
69. The professional literature indicates severe damage caused to employees who are subjected to abuse: harm to dignity, mental and physical health, professional functioning, social and family relationships, and even economic risk. The entire organization is also liable to be harmed, for example, by a decrease in motivation, productivity, and overall satisfaction.
70. Although there is no explicit legislation, case law has already recognized that these behaviors can be dealt with within the framework of the general duties of good faith and fairness that apply to employers. The labor courts have ruled that every employee has the right to a proper and respectful work environment, and that behaviors that violate an employee's dignity can be considered a breach of the employment contract.
71. The recognition of abuse is based on a set of circumstances and not just on each claim on its own. At the same time, not every feeling of emotional distress on the part of an employee will be considered bullying, the allegations must be examined objectively, distinguishing between ordinary conflicts in the workplace and behavior that has a real and ongoing violation of the employee's dignity.
72. Rulings on the subject are still in the process of being formulated, but key principles that have been formulated include the need for repetitive and non-one-time behavior; a comprehensive and non-isolated examination of the situation; a distinction between natural tension in an employment relationship and actual harm; and a demand for behavior that meets not only the employee's feelings but also an objective standard of reasonableness, proportionality, and organizational norms[44].
73. In our case, the workers claimed in the counterclaim that their employment was characterized by heavy workload and great pressure, complete disorder, massive turnover of project managers and team leaders, and extinguishing fires that were "placed" on them from now on. Most of the workers were often forced to work long hours in a manner that was contrary to the law and without proper compensation, and they were required to be available even outside of work hours and on weekends.  Some of the employees were embarrassed when they presented them to the company's customers as experienced and capable of providing a comprehensive and professional response.  When employees expressed their distress and asked for assistance and guidance, they encountered a lack of response at best, and at worst, they were subjected to accusations and accusations that they did not meet expectations and did not cope with difficulties and challenges independently.  Some of the employees were blatantly humiliated in front of their colleagues when they were "reprimanded" in a forum of all employees; Some of them were treated with humiliation by the company's customers, and most of them were forced to work in a hostile work environment, under constant pressure and a continuous workload, which put significant pressure on them.  The plaintiffs placed their claim for compensation in respect of this component in the sum of NIS 55,000 each, and in the antitrust of NIS 385,000.
74. Frenkel stated that the employees were employed for standard hours between 08:00 and 09:00 and used to finish between 18:00 and 19:00, except in cases where overtime work was required for which they were compensated by law,[45] and he claimed that the plaintiffs never raised allegations of "abuse" before him or any other party in the company[46].
75. Ganem claimed in his affidavit that Mr. Raz shouted at him bluntly in front of other employees and even used to laugh and make fun of him in the presence of his team leader, Yarden, and that he did not yell at him, ignored him and did not even say "hello" when he passed by, contrary to his behavior with the other employees[47], he prevented him from advancing to new projects and tasks, and when he asked to talk to him in order to move to a full office, he started screaming at him and telling him that he was bad[48]. Although according to Mr. Ghanem, his team leader, Yarden, was a witness[49],  he did not invite her to testify.
76. Frenkel stated that the employees were given full flexibility to manage their time, were given multiple breaks during the day whenever they wanted, as well as the possibility to work from home, rarely, if they worked at night it was work from home and in accordance with their wishes and consent, and in any case they received full and lawful compensation for all hours of their work[50]. Mr. Frenkel also showed in his supplementary affidavit that the employees presented only a partial picture of overtime work (between 1 and 4 days of business restrictions for each).[51]
77. Arf testified that she did not remember whether she worked more than 12 hours, she did not rule it out, but in any case she clarified that "not much"[52] and also ruled out working in a row of 13 hours[53].
78. Karko testified that even in Medatech, when a project is required to go live, sometimes more hours are required, and sometimes it is required to be available to customers at unusual hours[54].
79. Karko and Mr. Yosef testified that the company allowed them to work from home[55].
80. Yosef testified that he did not raise allegations of harassment at work with Mr. Frenkel[56].
81. The employees testified that the reports of hours outside the office, whether when they worked for clients or at home, were done through a remote app[57].
82. After hearing all the testimonies and reviewing all the documents placed before us, we preferred FBC's version and the testimonies of witnesses on its behalf in this matter to the employees' version.  We did not get the impression that the employees were generally required to work overtime in an unusual manner.  The employees did not prove to us that they worked under a great workload over time, and in any case we did not find that we complained about it, and in any case they were properly compensated for their full hours of work.  In the field of work of employees in this field, including at Datatech as the employees testified, there are periods in which the availability of employees is required during unusual and long hours, and they are required to work hard, but this does not establish a cause of action for them out of thin air.
83. Moreover, the allegations of humiliating and abusive treatment were not proven, and the employees refrained from summoning relevant witnesses to support their version in this matter.
84. We are under the impression, on the basis of the testimony of the employees themselves, that the claim in this matter was filed only as a weight against the main claim, and if it were not for the latter, the lawsuit in question would not have come into existence. Claims of this type that raise difficult claims "in the headlines" without a broad factual basis, and without support, and require the allocation of valuable resources of the court system at the expense of other litigants, and in practice prolong the litigation and unnecessarily harm the interest of streamlining the legal system.
85. In light of all of the above, and since the employees have not proven their claims of bullying and an abusive work environment, the claim for compensation in this regard is hereby dismissed.

Restoration of the offset for "leasing"

86. According to Employees 1 and 2, the company deducted considerable sums from their last salary (NIS 4,212 from Employee 1's salary and NIS 6,318 from Employee 2's salary) on the grounds that this was a "fine" for returning their vehicles to the leasing company earlier than planned, even though their vehicles were not returned to the leasing company at all when they left, but were transferred to the use of other employees of the company, and FBC was not fined at all.
87. According to the company, the employees signed a contractual obligation binding on them, and there is no significance to what the company did with the vehicles, and it was also not required to prove anything in the matter.
88. There is no dispute that facts 1 and 2 are signed in a letter of undertaking that is worded as follows:

"If the company returns the vehicle to the leasing company before the end of the leasing contract due to my resignation from the company, I will pay a fine in the amount equal to the monthly rental amount of the vehicle at that time multiplied by the number of months of rent as follows: In the first year of lease - 3 months of rent in the second year of lease - 2 months of rent in the third year of lease - 1 month of rent."

89. According to Mr. Frenkel, [58] the deduction in respect of the vehicle was made lawfully, it is a fixed, proven and non-controversial amount. The company deducted a fine from the salaries of employees 1 and 2 for returning the vehicle to the leasing company in light of their resignation.  According to him, even if the vehicle was not returned to the leasing company but was given to another employee, the company is entitled to offset in accordance with the provisions in the vehicle agreements that were attached to his affidavit[59].
90. In his testimony, Mr. Frenkel did not know how to answer explicitly whether the vehicles were transferred to other employees of the company[60]. On the other hand, Ms. Karko and Ms. Ghibli testified that the vehicles were not returned to the company[61].
91. In accordance with the aforementioned contractual obligation, the employees are liable for a fine only if the company returns the vehicle to the leasing company. Thus, it is explicitly stated in the agreement.  Since the company did not prove the return of the vehicles to the leasing company, the condition for charging the facts with the amount of the fine is not met.
92. In these circumstances, and since the company has not proven its right to deduct the fine, it must return the fines that were unlawfully deducted from the employees' salary.
93. Therefore, the company will compensate Employee 1 in the amount of NIS 4,212 and Employee 2 in the amount of NIS 6,318.

Deposits to a study fund

94. According to Employee 1, the company did not deposit funds for her to a study fund, despite its undertaking in the framework of the employment agreement between the parties to do so after 6 months of work, and therefore it owes her the sum of NIS 5,297 for this component, which constitutes 7.5% of her monthly salary.
95. The company claimed that Employee 1 is not entitled to deposits to a study fund, and even if she was eligible, her entitlement is 6 months from the date she signed her employment agreement in June 2021, i.e., January 22. She resigned in February 22 and without giving details about any fund.  In any event, it was claimed that she abandoned her claims on this matter in her affidavit.
96. Frenkel stated that Employee 1 was not entitled to deposits to a study fund, and to the extent that she was entitled, the entitlement would have started on January 22, and in February she had already resigned without providing details about any fund[62].
97. Employee 1 signed an employment agreement upon her acceptance to work as a student on January 10, 2021, and upon her full-time employment, she signed an additional agreement on June 21, 2021, which determined her eligibility for deposits to the study fund in the following terms:

"You will be entitled to a study fund after 6 months of work with the company, as detailed below: The company will set aside and transfer to the study fund an amount equal to 7.5% of the salary (as defined in the agreement, excluding the global supplement component) up to the ceiling recognized for tax purposes as updated from time to time in accordance with the provisions of the law, and will deduct from the salary and transfer to the fund an amount equal to 2.5% of it."

98. Karko also signed a similar agreement, an agreement as a student and a full-time agreement that included an identical clause regarding eligibility for a study fund after 6 months of work. However, Ms. Karko did not show that a deposit was made for her to a study fund after 6 months of work, she did not petition for compensation for the lack of a deposit to the study fund, and a review of her salary slips when FBC began  to deposit for her to a study fund did not make a retroactive deduction from her salary for a portion of an employee[63].
99. On the face of it, and since it was not explicitly stated in the employment agreement that the entitlement to deposits to the study fund would apply retroactively, from the date the employee began working at the company as a student, and since it appears that the company acted in the same manner in relation to another employee, who did not raise any argument against this interpretation of the agreement, employee 1 did not prove her retroactive entitlement to the study fund.
100. In these circumstances, and taking into account that Ms. Ghibli in fact began working under the relevant employment agreement in July 2021, she was entitled to deposits to a study fund from January 2022 until the date of termination of her employment on March 24, 2022. Hence, Ms. Ghibli is entitled to compensation for the lack of a deposit to the study fund in the amount of NIS 1,675 according to the following calculation:

NIS 22,331.5 (pension salary)[64] X 7.5% = NIS 1,675