The witness, Mr. Binyamin[1]: No, no.
Adv. Kariv: Was there no agreement on such a fee?
The witness, Mr. Binyamin: Nope.
Adv. Kariv: The agreement was that if you reach a sales target of 200,000 ILS per month, you will get a bonus, right?
The witness, Mr. Binyamin: There was no such thing. There was nothing.
Adv. Kariv: Wasn't there such an agreement?
The witness, Mr. Binyamin: Nope.
Adv. Kariv: But you got such a bonus, you got bonuses, right?
The witness, Mr. Binyamin: No, I don't remember getting any bonuses. He brought in the bonuses as part of his salary, he called them bonuses.
Adv. Kariv: Wait, your salary was, your salary was 11,500 shekels, right? You didn't get only 11,500 gross every month, did you?
The witness, Mr. Binyamin: What do you mean?
Adv. Kariv: Your salary you say your salary is 11,500 and you say there were bonuses.
The witness, Mr. Binyamin: The bonuses were within that salary, he called them bonuses.
Adv. Kariv: I didn't understand. Wasn't there a bonus line on the slip?
The witness, Mr. Binyamin: He defined bonuses but there wasn't. It wasn't a bonus.
Adv. Kariv: I'm asking you. Wasn't there a bonus line on the slip?
The witness, Mr. Binyamin: There was a bonus line in the coupons.
Adv. Kariv: What were these bonuses?
The witness, Mr. Binyamin: It was part of the salary.
(pp. 9-10 of the plaintiff's testimony)
This testimony of the plaintiff was not concealed. The defendant's claim that the bonus was paid when it reached a sales target of ILS 200,000 was not proven. According to the plaintiff's testimony, the bonus amounts were fixed ("more or less" - p. 10, lines 31-39) and they were determined at the discretion of Karencors (p. 11, lines 4-5).
- The defendant should have shown how it calculated the bonus it paid to the plaintiff. It should be noted that there are many months in which the bonus is identical to the previous month, which indicate that the component was an integral part of its fixed salary, and not a one-time or variable "premium". Therefore, the defendant should have made a pension contribution in respect of this component.
- With regard to the components of per diem and value compensation, the defendant did not present evidence that these components were not part of the determining fee for the deposits and what their nature is. Therefore, funds must also be set aside for them.
- We accept the plaintiff's calculations in the absence of counter-calculations and charge the defendant the sum of ILS 33,098 .
Holidays
- The plaintiff claims wage reductions for holidays. The defendant claims that he works at a fixed monthly salary and is not entitled to separate payment for holidays.
- We accept the defendant's argument. An employee who receives a fixed monthly salary is not entitled, as a rule, to additional payment for holidays, since this wage includes the payment for those days. The plaintiff did not prove that the terms of his employment deviated from the rule.
- Moreover, according to the pay slips that were submitted, no deductions were found for "holiday pay". The plaintiff's claim that in some of the coupons that he had, during the months when there were holidays, his salary was reduced or that he was not paid the full salary due to him that month was not presented to us.
- In view of the above, the component of the claim for holiday pay was rejected.
Restoration of a phone line and compensation for invasion of privacy
- The plaintiff is demanding the restoration of the telephone line and compensation for the invasion of privacy due to the collection of call output. The defendant claims that the plaintiff initiated the transfer of the line and that he was warned not to be restored. Regarding the invasion of privacy, the defendant denies.
- Restoration of the telephone line - the defendant claimed that the plaintiff knew that the line was not restored to him. The plaintiff, on the other hand, claimed that he understood that the line would be restored to him upon the end of his employment (the plaintiff's affidavit, paragraph 7). Given that the line was used by the plaintiff for many years prior to his employment with the defendant, and in the absence of an explicit written agreement stating otherwise, the burden of proving the waiver of the line is on the defendant. The defendant did not meet this burden.
- Therefore, we instruct the defendant to return to the plaintiff the ownership of the mobile phone line number 050-8885222, within 30 days from the date of the judgment.
- Violation of privacy - The defendant admitted that she had received a call output from the plaintiff. Receiving call output without the employee's consent or a court order constitutes a serious violation of privacy. However, the plaintiff did not claim explicit monetary relief for this violation of his claim, and in any event, the Labor Court is not authorized to hear a claim for compensation for invasion of privacy.
Unlawful Dismissal
- The plaintiff claims unlawful dismissal, due to the lack of sufficient details at the hearing and due to his reneging on his promise to pay him severance pay. The defendant claims lawful dismissal due to serious acts by the plaintiff, which justify the denial of severance pay and advance notice in accordance with section 53 of the labor regulations.
- Was the plaintiff duly heard? The hearing was held on October 3, 2022, at 5:00 P.M., in the presence of Karenkurs, the plaintiff and Asher Vaknin (an escort). The summons to the hearing was sent on September 28, 2022, and included details of the reasons for which the possibility of terminating the plaintiff's employment was considered. The reasons presented in the summons and the minutes of the hearing included suspicion of theft from an employer, a serious and thorough breach of the duty of trust, theft of a trade secret, compartmentalization of the employer of information, disregard and failure to comply with work instructions, and failure to keep a work diary.
- The defendant claimed that the plaintiff knew what was going on and that the hearing was lawful. The plaintiff claimed that the allegations were general and vague, and that the hearing was "conducted from mouth to mouth" (plaintiff's affidavit, paragraph 15), but reality proves otherwise.
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- Even before the hearing, a conversation took place between the parties at the initiative of the plaintiff:
Adv. Kariv: Okay. Around August-September 22, you initiated a conversation with Eitan. I am talking about the conversation in which you were required to return the suits you took, the ones you described in your second affidavit as a contribution in section 20. During this conversation, he actually hurls his claims at you. Both about theft, stealing suits, and about selling Yoad's products to customers, is it true that this was what happened in this conversation?