Q: In a time of war, she also has to earn less, doesn't she?
A: Not necessarily. She worked. There are reports that need to be prepared" (p. 10, 9-23).
- Indeed, it appears that there is a difference in salary in favor of the plaintiff, in relation to Udi's profits as reflected in the income report, and on the face of it, this gap raises eyebrows. However, I am convinced that the explanation given by the plaintiff and Udi is satisfactory. This is in view of the fact that Udi's profits depend on the files handled by the firm, including their scope, the date of their completion, and the question of their successful completion. This mechanism embodies the risk and enjoyment of the firm's success, and in this sense is appropriate for its status as an independent. On the other hand, the plaintiff is paid according to her working hours, and receives her salary every month, regardless of the scope, completion dates and success of the cases handled by the firm. As Udi also testified, his profits declined during the war, but the plaintiff worked and therefore her salary was not affected.
- Fifth, the circumstances and the time at which the plaintiff began her employment do not give her the characteristics of being self-employed.
- The plaintiff began her employment at the firm in April 2024. In her statement to the defendant's investigator, in response to the question of why the need arose to employ her at that time, she replied, "My husband worked alone in the office and there was not enough work to employ another person, more cases came in little by little" (Q. 38-40).When asked who performed the job before she was employed, she replied that no one, since "... there was a small business that did not require another worker. I told my husband to increase his work because his brother is also completing law school" (Q. 74-76). In addition, the plaintiff was asked if her husband would have hired another attorney in her place, and she replied, "I think he would do it" (paras. 84-85).
- Udi was also asked about the need to employ the plaintiff in April 2024, and he replied to the defendant's investigator, inter alia, that during the period when the firm was opened, he managed on his own in the face of the scope of work that was reasonable for one lawyer. Later, in light of the increase in the scope of work, together with the plaintiff's feeling that she does not connect to her current place of work, and her familiarity with the work of the lawyer, it was decided that she would work for him (paras. 140-127, 143-144). In response to the question of whether he had in fact established the firm for the plaintiff so that it was in fact her office, he answered in the negative, noting that the firm was established in 2022 even before her employment (paras. 141-142). In addition, he was asked whether he would have employed another lawyer if he had not employed the plaintiff and replied, "Of course, I have many cases and I have to handle them, I need a lawyer in the field of torts" (paras. 154-156).
- In her cross-examination, the plaintiff claimed that if she had not been employed by him, Udi would have employed another lawyer in her place (p. 8, paras. 2-3). In addition, the plaintiff was asked to address the fact that her statement that her employment was necessary due to an increase in the volume of cases was inconsistent with the decline in Udi's profits in 2024, and she replied, "But there are times when he receives the money two years after the case ends" (p. 6, paras. 14-16).
- In his cross-examination, Udi was also asked to refer to the date of the commencement of the plaintiff's employment:
Q: In 2024 you earn much less, in 2023 you withdraw 94, 000 ILS of your profit. You bring in an employee instead of your business flourishing. Why?