In these circumstances, I do not believe that a suspension can be treated as a sanction that is less than cancellation, since during the period of suspension the plaintiffs are not permitted to compete with the defendant, and moreover, as a result, the agreement has not been cancelled, nor does the countdown to the period of non-competition begin.
- Moreover, there is no dispute that throughout the period of suspension, the defendant did not pay the plaintiffs any salary. Failure to pay the plaintiffs' wages is even more jarring, taking into account that as it emerges from the above, to the extent that the defendant had notified the termination of the agreement, it should have paid the plaintiffs the wages throughout the period of application of the non-competition clause (or to notify that it was waiving this period and then to refrain from paying wages). However, the defendant did not notify the cancellation of the agreement, in accordance with this, as aforesaid, the non-competition clause did not come into effect, andin addition, the defendant's obligation to pay the plaintiffs wages for the entire period did not come into effect. With regard to the payment of wages during the period of suspension, I will note that in the framework of his testimony, Adv. Sommer did not know how to answer the question of whether in the past wages were paid to the plaintiffs during the period of suspension (see his testimony from line 39 on page 12 to line 2 on page 13). Moreover, the defendant's failure to pay wages during the period of suspension is contrary to the practice that applies in places where the institution of suspension is regulated by law - where, balancing mechanisms have been determined, including the payment of wages (even partial( to an employee under suspension. Thus, for example, section 49 of the Civil Service (Discipline( Law stipulates that during the first three months of suspension, an employee who has been suspended will be paid only half of his determining salary, and thereafter his full salary, subject to adjustments and deductions for income from foreign work. A similar arrangement of temporary payment at the rate of half of the wages also exists in section 163D of the Maritime (Seamen( Law, 5733-1973. Moreover, in labor law, where the employer unilaterally created an interim situation of suspension without a normative source authorizing him to do so, it was determined that the employer is not exempt from paying the employee's full salary for the period in which he made himself available to the worker. Thus, in the hearing of the National Labor Court (National Labor Court( 2-26/Name Glickman Ltd. v. Yaakov Neumann (March 16, 1981), the National Labor Court ruled that:
" The "suspension" of an employee is not the "right way" in the employee-employer relationship, but when it is anchored in the law, a collective agreement or an individual agreement. This means that ordinarily the employer has the choice to dismiss an employee or to employ him, and he is not entitled to unilaterally create a kind of interim situation of 'neither day nor night, ' and to be exempt from paying the employee wages, within the period of the interim situation." (Ibid. in paragraph 2 on page 6 of the judgment).
- Moreover, it was clear from the testimonies that the defendant chose not to terminate the agreement with Zahavi, deliberately and in order to leave her the option to return it to the air. It also emerged that this conduct of the defendant stemmed from her reasoning, and accordingly she benefited from linking Zehavi's name to the station.
This is what Zelkovnik testified in lines 12-15 on page 93: