A: As I said, I'm employed by my father. ... I'm sick with a disease that we won't know...And there are days I couldn't work in the office, so I brought her to work in the office. Sometimes she prepares the The claims and doing her job, I wasn't always in the office there were days when I wasn't in the office" (p. 10, 30-35).
- In addition, Udi denied in his cross-examination that he had established the firm for the plaintiff:
"Q: You set up the business for the plaintiff, that's how I get the impression.
A: Is that how you get the impression? That's not true. Wrong. An independent business, I started it by the way, I'll emphasize The court that she also opened a licensed dealer in 2022 and she can't...
Q: How long did she work in a licensed dealer?
A: She didn't work. She thought that like me, she could run a business, schedule herself, and manage A firm and it became clear to her that she did not come from the field of managing a law firm and income tax, an accountant and regular payments. After closing the dealer, Morasha worked at another company for the best I remember, as a legal advisor and after that she worked in another job and then with me when there was a need for a lawyer I have her in my office and I employed her..." (p. 12, 11-19).
- The plaintiff's version - both in relation to the fact that the decision to employ her was made in accordance with the increase in the volume of cases handled by the firm, and in relation to the fact that if Udi had not employed her, he would have employed another lawyer in his firm is coherent and convincing. As to the question of the plaintiff's employment in relation to the firm's profitability, as explained above, although on the face of it it seems that it can be inferred from Udi's income report that his profits in 2024 were on a downward trend, this does not necessarily indicate that there was no increase in the volume of cases at the time of the plaintiff's employment. Moreover, it is also possible that, as the plaintiff claims, the income report alone does not reflect the profitability of the business, for example due to irregular expenses, but the plaintiff did not make any concrete claim on the subject and in any case did not prove that such irregular expenses were incurred. In any event, I found it acceptable to accept the plaintiff's argument in her summaries, according to which, even if it had been proven that during the relevant period, during which the plaintiff began her employment, there was indeed a decline in the firm's profitability, this would not necessarily have affected the examination of the existence of an employment relationship in her case.
- Sixth, the fact that no substitute was employed in place of the plaintiff for the period of maternity leave does not give her the characteristics of being self-employed.
- In her statement to the defendant's investigator, the plaintiff was asked whether a replacement had been appointed for the maternity leave and replied that her husband was replacing her, and that she intended to return to work after the maternity leave (paras. 77-81). She was also asked if there were any tasks that she continued to perform during the maternity leave, and she replied in the negative (paras. 82-83). The plaintiff further claimed: "For example, a client called me during the maternity leave and I referred him to the office, I have no way of saying what the status of the case is, I refer him to the office and I am still handling the case" (paras. 109-110).
- When Udi was asked by the defendant's investigator who replaced the plaintiff during the maternity leave, he replied, "No one. Sandy is knowledgeable about cases, it's not a case of two or three weeks, they take time" (Q. 146). Later on, he was asked why he didn't hire a substitute employee and replied, "I don't know a lawyer for such a short period of time, and to train someone and teach him will take me three months, and then Sandy will come back, who will come to me for three or four months. Sandy is a cannon in personal injury and social security. I don't want to teach someone and then he will be my competitor" (Q. 148-151).
- In her cross-examination, the plaintiff claimed that it was not profitable for Adi to bring in a substitute and teach her the job, for only three months, and therefore during the maternity leave he was the one who handled the cases (pp. 6, 5-10; Similarly, Udi claimed in his cross-examination that he performed the work during the maternity leave, and when asked, "Why not bring an employee?" He replied, "There are things that I did or things that can wait that I left on the table for her, such as completing documents for an insurance company and affidavits that there are days to complete, so I left them for her" (pp. 11, 15-19).
- I am persuaded that the explanation given by the plaintiff and her husband is satisfactory. It is logical that in the circumstances of the case, Udi chose not to hire a substitute attorney, knowing that the plaintiff is expected to return to her job after three months of maternity leave. In addition, the division of labor is at Udi's discretion as part of his prerogative as an employer. Therefore, the defendant's argument that the failure to employ such a substitute constitutes a reason for the fact that there was no employment relationship between the plaintiff and Udi should be rejected.
- Seventh, there is no dispute that no employment agreement was signed between Udi and the plaintiff. Thus, for example, it was noted in paragraph 3 of the questionnaire for examining the employee-employer relationship; in the plaintiff's message to the defendant's investigator (paras. 102-103); in Udi's notice to the defendant's investigator (paras. 122-123); and in the plaintiff's cross-examination (paras. 6, paras. 27-28). Considering the totality of the circumstances of the case, weight must be given to the fact that the plaintiff and the plaintiff are husband and wife, in the sense that even though such an employment agreement was not signed, this does not prejudice the determination that there was an employment relationship between the two.
- In view of all this, a substantive examination of the relationship reveals that the scales tend to be the recognition of the existence of an employment relationship, due to the great weight that must be given to the existence of the positive aspect and the non-existence of the negative aspect in the framework of the integration test.
A note before you finish
- The plaintiff devoted a significant part of her summaries to the allegations regarding the defendant's conduct in her case after the filing of the lawsuit in this case, including blocking the possibility of paying wages for her work and issuing vouchers for the payment of advances. Thus, in effect, the plaintiff was forced to open a file of a licensed dealer and she accumulated an advance debt. According to her, after her return from maternity leave, she continued her work in the same format, but due to her erroneous classification as self-employed, her claim for payment of maternity allowance for the birth of her third son was rejected.
- In response, the defendant argues in his summaries that the plaintiff, who received a maternity allowance for the birth of her second son, should not be regarded as a salaried employee, but rather as self-employed as of May 2025. This is in view of the difficulty in opening an independent file retroactively and in order not to infringe on her rights. Therefore, as of this month, she is obligated to pay National Insurance contributions according to her income as a self-employed person.
- It should be precise, as decided in the framework of the pre-trial hearing, the question in dispute relates to the classification of the plaintiff's employment, as an employee or as self-employed, during the period relevant to the payment of maternity allowance for the birth of the plaintiff's second child - that is, from April 1, 2024, until the filing of the claim for payment of maternity allowance on February 24, 2025.
- The defendant is presumed to amend his records in accordance with the ruling in this judgment.
Conclusion
- Therefore, the claim is accepted, so that it will be determined that there was an employment relationship between the plaintiff and her husband.
- In the circumstances of the case, each party will bear its own expenses.
It is possible to appeal to the National Labor Court within 30 days of the date of the judgment.