Labor Dispute (Tel Aviv) 5587-11-22 Tzala Cohen – Ankori Factories (1971) Ltd. - part 2

12-34-56-78 Chekhov v. State of Israel, P.D. 51 (2)Summary of the Defendant's Arguments

10. The defendant denied the plaintiff's claim and claimed that upon her absorption, it was made clear to the plaintiff that the wages and conditions of employment of teachers in the defendant correspond to those of the teaching staff in official educational institutions, as they are in accordance with the collective wage agreements signed by the state and which do not directly apply to the defendant. The plaintiff was given full information about the terms of her employment, and this is reflected in the pay slips.
11. The plaintiff's claims are nothing but a smokescreen intended to cover up the deficiencies that were discovered in the way she conducts herself and the deterioration in the employment relationship between the plaintiff and the school principal, which followed offensive and unusual remarks on her part, and certainly in view of the fact that she was a teacher in her first year of probationary at the school, and these constituted the real basis for the intention to terminate her employment at the end of the probationary period.
12. With regard to the pay slip, the defendant claimed that the plaintiff received a detailed pay slip that complies with the provisions of the Wage Protection Law, 5718-1958 (hereinafter –  the Wage Protection Law) and that there is no normative source that obligates her to draw up the pay slips in a manner similar to that drawn up by the recognized institutions whose owners are parties to collective agreements to which the defendant is not a party. At the same time, the plaintiff received assistance and answers to her questions regarding salary matters to the extent possible, and taking into account the manner in which her claims and questions were presented and reasonable timetables from the school principal and staff. It was also suggested that the plaintiff contact the teachers' union in order to conduct an individual examination of her claims.
13. On May 24, 2022, the plaintiff was summoned to a conversation with the school principal, during which he told her that he had difficulty with her frustration, disappointment and anger, and that under such problematic conditions he would continue to employ her, and therefore she should consider continuing her work next year, especially when she was expected to give birth and go on maternity leave. At the end of the conversation, he handed her an envelope containing a letter summoning her to a hearing pursuant to dismissal, in which she allegedly detailed claims that were not related to what was said in the conversation, some of which had not even been said beforehand. The plaintiff was summoned to the hearing against the background of her clear statements that the plaintiff's pregnancy was not a consideration in the decision to terminate the plaintiff's employment.
14. There is no basis for the plaintiff's claims regarding the hearing. After the hearing, it was decided not to continue the plaintiff's work at the school, subject to any law, while it was clarified that the defendant intended to contact the Supervisor of Women's Employment at the Ministry of Labor in order to obtain an appropriate permit. In light of the plaintiff's request, and when it was made clear to the defendant that her clarification to the plaintiff was not sufficiently clear, the dismissal letter was amended. Given that the plaintiff is a teaching employee and even in a probationary year, a decision to terminate her employment must be made and brought to her attention by the end of May in order for her to be able to plan her steps, regardless of the timing of the actual termination of the employment relationship. In the circumstances of the case, the actual termination of the employment relationship is the result of granting a permit for dismissal or, in the absence of such a permit, the period of maternity leave and the plaintiff's desire to return to work for the defendant during the protected period.
15. Copied from NevoWhen the defendant received the statement of claim on November 16, 2022 – she understood that there had apparently been misunderstood and that despite her impression – it is possible that the plaintiff was interested in returning to teaching at the school during the protected period after the end of her maternity leave and in general. Therefore, on November 23, 2022, she contacted the plaintiff and informed her that she was willing to continue her employment at the end of the maternity leave period, in the 2023-2023 school year.
16. After the defendant's request for a permit to fire the plaintiff was rejected, she assumed that the plaintiff was not interested in returning to work during the protected period, even though there is no dispute that the plaintiff has a right to return to work. On the basis of this understanding, the defendant's payroll accountant informed the plaintiff that the termination of the employment relationship would be at the end of the maternity period on December 2, 2022.

The Procedure

17. At the evidentiary hearing that took place on November 13, 2024, the plaintiff and on behalf of the defendant, the defendant's manager, Mr. David Klar, and the defendant's CEO, Ms. Osnat Haber Cotton, testified.

Discussion and Decision

18. Already at the outset, we will note that we found it appropriate to accept the vast majority of the claim. We did not find that her dismissal was due to her pregnancy.
19. We are of the opinion that the defendant acted contrary to the provisions of the law in its conduct towards the plaintiff, where it did not give the plaintiff notice of the terms of her lawful employment, nor did it provide a clear response to her repeated inquiries regarding the structure of her salary and the salary components to which she is entitled, including in the framework of this proceeding. We were under the impression that the plaintiff was fired because she insisted on her rights to receive a response to her repeated requests, conduct that the defendant saw as harming the fabric of the school and the dignity of the principal. The defendant acted in this way, while the plaintiff was nine months pregnant, and without obtaining the approval of the supervisor of women's employment for dismissal. We did not find that the plaintiff was fired because of her pregnancy, but her dismissal, in our opinion, was unlawful and in a defective proceeding, during her pregnancy, in repeated violation of the provisions of the law. Such a respected educational institution that treats its employees in this manner should be viewed with extreme severity.
20. In the framework of the judgment, we will first discuss the absence of notice of the terms of employment and its significance, we will continue to discuss the claim for wage differences, we will detail the plaintiff's requests for details of her salary components and the conversations that took place in this framework, we will examine the plaintiff's dismissal process as well as her claims regarding the violation of the Women's Employment Law and discrimination due to pregnancy and childbirth.
21. Notice of Employment Terms

The Normative Framework

21. The Notice to Employee and Job Candidate Law (Conditions of Work and Screening and Acceptance Procedures), 5762-2002 (hereinafter – the Notice to Employee Law) requires the employer to provide the employee  with a written  notice to the employee that includes the details specified in Section 2 of this Law, within 30 days from the date of the commencement of his employment. The Notice to Employee (Conditions of Work) (Notice and Details Regulations), 5762-2002 determine the form of the notice and additional details that will be included therein, in addition to those included in the Notice to Employee Law.
22. The rule is that the employer's obligation to give notice to the employee under the Notice to Employee Law is intended to "increase the certainty of the terms of employment, and to prevent gaps in expectations in the future, which are fertile ground for disagreements and legal litigation..." (CA (National) 20880-07-20 Tesfaselase Desale Zerezgi - Kaplan & Levy Ltd. (June 20, 2022) (hereinafter – the Kaplan & Levy judgment).
23. By the very nature and nature of the employment relationship, it is subject to an increased duty of good faith and fairness, and from this also derives an increased duty of disclosure and initiation and a duty to inform, which realizes the proper values of transparency and clarity in an employment relationship (Labor Appeal 1487/02 Amos Sofer-Reshet ORT Israel (December 29, 2005), Labor Appeal (National) 652/08 State of Israel - Ben Hamo (February 9, 2011), Labor Appeal (National) 27444-03-20 State of Israel - Dr. Cnaani-Levintz (February 28, 2021)).
24. It was also ruled that "the provision of notice of the terms of employment is of great importance, since it ensures that the employee will have information regarding the terms of his employment in a manner that will help him to stand up for his rights, and it may reduce disputes between the employee and the employer" (CA (National) 154/10 Clara Schneider - Nitzanim Security Ltd. (May 3, 2011).

Discussion and Decision

25. There is no dispute that the defendant did not give the plaintiff notice to the employee and/or that an employment agreement was signed between the parties. The defendant also did not claim that Appendix A to the exhibits file constitutes a notice to the employee. There is also no dispute that this Appendix A does not meet the requirements of the Notice to Employee Law and does not constitute a notice to the employee.
26. The defendant claimed that when the plaintiff was hired, it was made clear to her that the wages and conditions of employment of teachers in the defendant corresponded to those of the teaching staff in official educational institutions, as they are in accordance with the collective wage agreements signed by the state (which do not apply directly to the defendant). The defendant did not elaborate on this claim, did not specify what the plaintiff's salary included, and what the terms of her employment were. The defendant also did not present the relevant collective wage agreements and did not show a compatibility between the plaintiff's salary and the terms of employment with the provisions of these agreements.
27. The defendant did not bring before us any evidentiary basis to support her claim that the plaintiff was given full information about the terms of her employment: the scope of the position, the identity of the direct supervisor, the content of the position and the social conditions to which she is entitled, nor did she show whether and how the salary components paid to the plaintiff are detailed in the pay slips and comply with the provisions of the alleged collective wage agreements. We will reiterate that the defendant did not show that the information provided to the plaintiff, according to her, was given to her in writing as required by the Notice to Employee Law.
28. One of the purposes of giving notice to an employee is for the employee to know the terms of her employment, so that she can, among other things, compare them to those specified in the pay slips and make sure that what was agreed with her is actually carried out. Therefore, pay slips cannot replace notice to the employee.
29. The plaintiff stated that all she was told at the beginning of her job was that she would study for 20 hours a week and that her salary would be paid in part according to the "Oz for Value" program (50% of a full-time position, i.e., 12 hours) and the rest at the rate of 33% of a full-time position (8 hours) would be paid according to the wage terms known as "old world". Nothing more. The defendant did not succeed in contradicting this claim.
30. Klar stated that, as is customary for the defendant, before the beginning of the school year, the plaintiff was given a timetable and was asked to provide the wages department with all the relevant details and to sign a series of documents to ensure payment of her full rights. Attached to his affidavit was a correspondence sent to the defendant's counsel on September 10, 2023, detailing the forms included in the Teacher Absorption Procedure for the year 2021-2022, which include Form 101 for 2021; Procedure for filling out Form 101; Bank details form; Procedure for joining a study fund; Form for joining a study fund – the Teachers' Union; Form for joining a study fund – the Teachers' Union; Pension savings arrangement; Pension – joining a study fund; the employer's application for the rank – a teaching profile; an example of a teaching profile document – employment data[1]. These forms are blank, do not relate to the plaintiff and therefore do not contain substance.
31. Klar's affidavit was also accompanied by forms filled out in relation to the plaintiff[2], which include an employee card (Form 101) for 2021; a photocopy of her identity card; a request for tax relief for an individual entitled to an academic degree; confirmation of account management at Bank Hapoalim; the plaintiff's employment data from the Ministry of Education; confirmation of eligibility for a teaching certificate; a notice to the employer of the plaintiff's choice of a deposit in a pension fund. In addition, two letters regarding the  plaintiff's employment data from the Ministry of Education, the Jerusalem District and the Central District[3] were attached.
32. These documents deal with the plaintiff's data (employment data (seniority, rank), taxation data (Form 101), pension fund, bank account) and are intended to carry out the plaintiff's absorption into employment with the defendant. They do not replace notice to the employee in accordance with the provisions of the Notice to Employee Law.
33. From all the details it clearly emerges that the plaintiff was not given notice regarding her salary and the terms of her employment in accordance with the provisions of the Notice to Employee Law.
34. This failure of the defendant to comply with the provisions of the law is the failure that underlies the basis of this lawsuit.
35. The plaintiff again demanded that the defendant receive information about the components of her salary, and against this background disputes and misunderstandings arose between the parties. These disputes would have been spared, and it is possible that even though this claim would not have come before us, if the plaintiff had been given notice of her salary and the terms of her lawful employment.
36. Thus, for example, the defendant claimed in the statement of defense that the plaintiff was hired for a probationary year. When Mr. Klar was confronted with the plaintiff's claim that she first learned that she had been hired for a probationary year in the letter of defense, during his testimony, he replied: "First of all, it's a matter of a year of probationary in your first year in a new system for a new teacher within the system, it's known to everyone, certainly to someone who claims to be very much in groups of salary details, which is sure that everyone knows. Second, all the teachers received a diary of the teachers' union at the beginning of the year, I can't say for sure that Tzale took it, but in the diary of the teachers' union, it was stated that the first year of teaching in a new framework is a probationary year." [4]
37. Apart from that diary – Mr. Klar confirmed that there was no written document given to the plaintiff stating that she had been hired for a probationary year. The alleged diary was not presented and it was not proven that the plaintiff knew about its contents.
38. Klar therefore brought before us the defendant's approach, according to which there was no need to inform the plaintiff as to the terms of her employment, including that she was in a probationary year. The plaintiff should have known these conditions by virtue of her seniority in teaching, and in accordance with her choice whether or not to take an annual diary. It should be emphasized that even if the plaintiff had taken the annual diary, which was not presented to us, it is doubtful whether it could have been regarded as a notice to the employee.
39. In fact, until this date, the defendant had not presented a detailed and clear calculation of the components of the plaintiff's salary and the amount of each component separately and to the court, so that it is not possible to know how it was calculated. Even a printout of Hilan that defines the parameters according to which the plaintiff's salary was paid[5] does not provide a response to the plaintiff's claim.
40. We will add that in these circumstances, we did not find it appropriate to accept the defendant's version that the plaintiff was employed for a probationary period, in the absence of any basis to support this claim, and in the absence of notice to the employee and/or an employment agreement detailing the terms of the plaintiff's employment.
41. In light of the above, we are able to accept the plaintiff's arguments and oblige the defendant to pay the plaintiff compensation for the higher side for this component, in the sum of NIS 15,000.
42. Salary differentials
43. The plaintiff claimed that she was entitled to wage differences, including for working on days off and filling a place. In the absence of precise details on behalf of the defendant as to the manner in which the plaintiff's salary was calculated, the latter set the sum of her claim in respect of this component at NIS 5,000
44. The onus is on the defendant to show how the plaintiff's salary is calculated and to prove her claim that the plaintiff is not entitled to wage differences. Since she did not do so , we accept the plaintiff's claim in this salary component and oblige the defendant to pay the plaintiff wage differentials in the amount of NIS 5,000.
45. We will add that the defendant's witness, Ms. Osnat Haber Cotton, stated that to the extent that the plaintiff performed overtime work, she should have submitted an orderly detail, but she did not do so. This statement by Ms. Haber Cotton is inconsistent with the burden of proof that falls on the defendant and is inconsistent with the evidence in the case. In her conversation with the plaintiff on June 1, 2022, the plaintiff told her that she had prepared such a table that she wished to give to Mr. Clark, but the plaintiff refused to accept it[6]. In addition, the plaintiff submitted attendance reports [7], in which she marked the days on which she worked overtime.
46. Since the defendant did not show even in the course of the proceeding how the plaintiff's salary was calculated , and in circumstances in which the defendant presented versions that contradict the evidence from real time, we found it appropriate to award the plaintiff wage withholding compensation in the sum of NIS 500 for this component.

• Unlawful Dismissal

Conduct prior to the dismissal process – the plaintiff's inquiries to receive the salary components