The witness, Mr. Zelkovnik: Mr. Epstein, I think he would have known or said sincerely to bring back Natan Zehavi for all the reasons you said. Together with his special program."
Similarly, Adv. Sommer testified regarding the nature of the plan in lines 25-26 on page 6 that:
"It is a program that provided a very significant social voice. It is a program that has been one of the pillars of radio for many years. Unequivocally."
- In summary, I am of the opinion that the defendant was not entitled to suspend Zahavi from his position, but did so unlawfully, without paying the plaintiffs wages during the period of suspension, and this, instead of canceling the agreement, began the countdown to the period of non-competition, during which it was obligated to pay the plaintiffs wages.
For the sake of completeness and with regard to the right to cancel the agreement, I find it necessary to note that both parties mistakenly referred with regard to this possibility to the provisions of clause 82 of the 1997 agreement, which allows the cancellation of the agreement for any reason by giving advance notice. However, as I noted earlier, the relevant agreement that applies to the parties is the agreement from 2007. In this last agreement, there is no stipulation that allows the termination of the agreement with prior notice, but rather other conditions that allow the termination of the agreement in the event of a breach. Since none of the parties claimed that they had given notice of the annulment of the agreement, in any event, an examination of the question by virtue of which provision in the agreement can be given notice of its cancellation, is not required. At the same time, I will note that in the circumstances of the present case, each of the parties could have notified the cancellation of the agreement by notice a reasonable time in advance. This is in circumstances in which the validity of the agreement was last extended until March 2019, since that date the parties have not signed an agreement or an appendix extending its validity, and therefore the agreement has become an agreement for an indefinite period - an agreement that can be cancelled by notice within a reasonable time (see the Partition Company case, at paragraph 39).
- The determination and accordingly that the defendant acted unlawfully when she suspended Zahavi from the broadcast, without paying him his salary, is sufficient to lead to the determination that the defendant acted unlawfully in its demands. However, for the sake of completeness, I am of the opinion that even in its demand to provide collateral or financial obligations , the defendant exceeded its rights under the agreement, and added to its terms a new stipulation - which it has no right to enforce. Therefore , in my opinion, with the demand to deposit financial guarantees - which does not exist in the agreement, the defendant created a new proposal for the agreement, which Zahavi could accept or refuse to accept, but this is a demand that cannot be enforced within the framework of this agreement. I will note that in its summaries, the defendant claimed (apparently since it was unable to present a legal or agreement basis for this demand( that it did not demand financial guarantees for the fulfillment of Zahavi's obligations from now on, but only that the parties would arrange a procedure that would apply from now on. I cannot accept these arguments of the defendant. This is first of all, since, as is clearly evident from Adv. Sommer's letter of February 5, 2023 (the relevant clauses of which were quoted as stated above in paragraph 61 of the judgment( - the defendant demanded that Zahavi agree to undertake to pay half of any fine that would be imposed on the defendant in the future for his statements - i.e., she was definitely referring to financial collateral. To this must be added the testimony of Mr. Sommer, which was cited above in paragraph 62 of the judgment, according to which the defendant was not willing to make do with an apology, but rather requested that it be ensured that Zehavi's conduct would not change every four months.
This leads to the question of whether the requirement for financial collateral is lawful. As to this, and first of all - there is no dispute that the agreement does not include a mechanism of financial guarantees or any collateral that guarantees the fulfillment of Zahavi's obligations, but that only the possibility of cancelling the agreement is stipulated in its framework. To be fair, the possibility of stipulating the fulfillment of an agreement with collateral - where the agreement does not include such collateral - does not exist in the general law either. In these circumstances, this demand constitutes in effect a new proposal for the agreement, which Zahavi was not obligated to accept, and when the defendant insisted on it, the defendant could, in accordance with its right as detailed in section 69 above, notify the plaintiffs of the cancellation of the agreement within a reasonable time and assume all of its obligations deriving therefrom. In this context, I will add in this context to the above that, prima facie, in circumstances in which the defendant believed that Zahavi would breach the agreement again, the defendant could have claimed an expected breach, as an additional basis for its demand to cancel the agreement, but - its demand to receive collateral as a means of preventing a foreseeable breach - has no basis in the agreement that is the subject of the hearing or in law.
- As an interim summary so far, in my approach, in accordance with the interpretation of the provisions of clause 2.6 of the agreement, the defendant is not given the right to decide on the question of whether in the contractual relationship between the plaintiff and the plaintiff, the plaintiff violated the provisions of the Regulation and, therefore, even violated the provisions of the agreement. Given the aforesaid, and since it has not been proven that Zahavi did indeed violate the provisions of the Regulation by making his statement (and on the face of it it was proven to be the opposite), it has not been proven that Zahavi violated the provisions of clause 2.6 of the agreement by his very statement. I further determined that even to the extent that the defendant has the right to demand that Zahavi not express himself in the future in the manner in whichhe expressed , and in addition, it is possible that in the circumstances it can demand that Zahavi apologize - in the additional sanction taken by the defendant - the suspension of Zahavi and yes, in its demand to provide guarantees for the fulfillment of the agreement from now on - the defendant exceeded the boundaries permitted to it in the agreement and in law.
- Once it has been determined by me that the defendant acted unlawfully and not in accordance with the agreement at the time she suspended Zahavi, the question of what remedy the plaintiffs are entitled to in respect of this must be examined. The plaintiffs claim that they are entitled to the same relief as the monthly contractual consideration during the period of suspension, calculated until the date of submission of Zehavi's affidavit - i.e., multiplied by 27 months. This is to the extent that they are entitled to wages, since Zehavi was in suspended status, or as compensation for the fulfillment of the agreement and reliance. The defendant, on the other hand, claims that the plaintiffs are not entitled to receive any relief since Zehavi breached the agreement. In addition, the defendant claims that the damage was not proven, and finally the defendant claims that Zahavi did not meet his duty to reduce the damage. After examining the defendant's arguments, I found that to reject her first and third claims and to partially accept her claim regarding proof of damage.
And in detail - first, with regard to the allegations regarding Zahavi's breach of the agreement. Thus, as detailed in detail above, I did not find it acceptable to accept the defendant's arguments, and accordingly Zehavi violated the agreement between the parties by saying them. Moreover, when it was clarified that in any case the defendant was not willing to suffice with his apology, but added an additional demand that was not set out in the agreement, it was not proven that Zahavi breached the agreement by not obeying the defendant's instructions, but rather that the defendant was the one who presented a demand that was not in accordance with the agreement. Moreover, from my determination that the defendant suspended Zahavi, unlawfully, without paying the plaintiffs the contractual consideration, it appears that the defendant itself was the one who breached the agreement between the parties - in the framework of which she undertook to pay monthly payment for each month of engagement. In these circumstances, the argument that Zahavi breached the agreement is rejected and therefore the plaintiffs are not entitled to any compensation.
- As to the defendant's claim that the damage was not proven, the defendant begins by arguing that the damage was not proven, taking into account that the plaintiffs' claims regarding the amount of the damage were not consistent. This is because the plaintiffs claimed different sums, in the lawsuit, in the supplementary affidavit and in the summaries. The defendant further claims that the amount of contractual consideration agreed upon between the parties was not proven, since the plaintiffs did not present any evidence indicating the payment that was actually paid, and in addition, she claims that in any event, in the course of the hearing, it became clear that the amount of contractual consideration was reduced to the sum of ILS 25, 000. Finally, the defendant argues that the plaintiffs expanded the front, since for the first time in their summaries they petitioned for payment of damages in a new construction of an ongoing tort, in which it was claimed that the suspension proceedings had not been lawfully concluded and that the radio was holding Zahavi in an ongoing state of contractual imprisonment. As I have prefaced and noted the defendant's arguments with regard to the extent of the damage, I find it acceptable in part, so that the amount of the damage will be multiplied by ILS 25, 000 in 27 months.
The following is the reasoning underlying this decision - I will begin by noting that there is substance to the defendant's claim, and accordingly the plaintiffs were not consistent in their claims regarding the amount of their damages. Thus, with regard to the damage causedby non-payment of consideration during the period of the cessation of the broadcast, the plaintiffs set the relief in their claim at the sum of ILS 264, 250, and in addition, they petitioned for payment of an additional sum which was set at ILS 2, 632, 500 for damage caused by the defendant in the breach of contract, which in effect prevented the plaintiffs from continuing to make a living. In the supplementary affidavit filed by Zehavi, with regard to the issue of damage, it was claimed that the defendant must pay the plaintiffs from November 2022 until the date of the affidavit - i.e., for 27 months - the sum of ILS 50, 000 per month, and they claim that this payment should be supplemented by the date of the judgment. It was further claimed that alternatively, the plaintiffs are entitled to the sum of ILS 400, 000 until the date of filing the claim. In their summaries, the plaintiffs claim that due to the failure to notify the termination of the contract, and for the continued presentation of the project and the ongoing breach, the plaintiffs are entitled to payment of the sum of ILS 50, 000 multiplied by 27 months - i.e., ILS 1, 350, 000, anddo not petition for payment of the amount of the difference until the date of the judgment. Alternatively, for this head of damage, they claimed that they were entitled to payment for 8 months from the date of broadcasting until the date of filing the claim in the sum of ILS 400, 000. Alternatively, they claimed reliance compensation of ILS 50, 000 multiplied by 27 months.