Labor Dispute (Haifa) 25884-09-24 Khaldun Hamdan – Tair Hassan - part 5

It should be noted that the change of versions makes it difficult to give credence to the claims of the defendant and his witnesses;

Fifth Note - Failure to Attach Evidence - Beyond the fact that the defendant's testimony should not be accepted, we find a significant flaw and deficiency in the defendant's refraining from attaching relevant evidence, which is under his control.  Thus, for example, the defendant did not attach up-to-date documents from his bank account, which can show that he did not withdraw any funds from the bakery, nor did he make such payments for it;

Sixth Note - Failure to Testify 'External' Witnesses - In addition to the fact that the testimony of the defendant and his witnesses is rejected by us, and beyond the fact that no relevant evidence was submitted by them, it should also be noted that the defendant is obligated to refrain from attaching the testimonies of objective witnesses, who are not members of his family or employees of the mafia.  Among other things, the defendant did not testify to officials on behalf of Bank Hapoalim (where the mafia's account is maintained^[6]), or to the mafia's accountant, who is mentioned in the affidavits of the defendant's witnesses^[7].

C.2.    The first dispute between the parties - the identity of the employer

12. The parties' arguments - the plaintiff arguedThus: the defendant is the registered owner of the bakery; The fact that his name is registered in the official databases - in the authorities and banks, as the owner of the business, imposes direct responsibility on him as an employer; All of the bakery's financial activity was managed from the defendant's personal bank account; The defendant and Nizar should be recognized as "joint employers" who are jointly and severally responsible for his rights, since the defendant provided the bakery with the formal and financial envelope, and he was also present In the bakery From time to time as a manager, while Nizar was the main manager of the bakery.
13. On the other hand, The defendant claimedThus: his registration as the owner of the bakery is only a formal one, which began as an unfinished family historical initiative; his uncle, Nizar, was the one who established and operated the bakery in practice; The signature and handwriting on the checks presented (of the mafia's bank account) and Nizar was the one who held the checks and acted in the account by virtue of authorization he gave him at the time; all the employer's material actions - hiring, supervision and dismissal - were carried out exclusively by Nizar; The plaintiff knew very well in real time that Nizar was his direct employer.
14. The normative infrastructure - The issue of identifying the employer has been discussed extensively in court rulings, and the guiding principles were set out in the judgment on the matter Kfar Ruth^[8]: "In unusual employment arrangements, in which a third party is involved in addition to the employee and the user of his work, the question of identifying the "legal" employer may arise in all its severity due to its implications in various areas: the hallmarks pointing to him will not always be decisive, exclusive, or necessary, and sometimes they can be revealed face to face one or the other, but when they accumulate in whole or in part, they will tip the scales in favor of the right employer that bears the duties imposed on him towards the employee".
15. These principles remained the same even in later rulings of the National Labor Court, in which it was emphasized that all the characteristics of the engagement and the factual reality that prevailed in practice should be examined, while avoiding a decision based on a single test^[9]:

"In a long series of rulings, it has been determined that 'the judicial determination regarding the identity of the employer - similar to the judicial determination as to who is an 'employee' - will be made based on a substantive examination of all the characteristics of the engagement, and without dependence on the definitions set by the parties themselves"...  In order to identify the employer, auxiliary tests were developed in case law, where each of the auxiliary tests was intended to examine a different aspect of the employment relationship, with the aim of using them to learn about the totality.  Therefore, it was determined that none of the auxiliary tests stand on their own, and should not be applied technically, but rather "their purpose is to reveal the true identity of the employer in order to realize the purpose of labor law, taking into account the unique characteristics of complex labor relations."

16. Among the auxiliary tests prescribed in case law are the following questions:^[10]: who hired the employee and arranged the terms of his employment; who determined the terms of his employment; who bore the payment of his wages; who gave him instructions and supervised his work; to whom the employee was subordinate; who handled his vacations and absences; who had the authority to terminate his employment; and in which business and in what organizational framework the employee was integrated. It was further determined that it is not necessary for each of them to point to the same factor, and the decision is made after examining the overall picture and the cumulative weight of all the indicators.
17. The Defendant Nose Reference In his summaries toInterest ABRAHA And regarding Tuvia[11]. It emerges from these rulings that the registration of a business in a person's name, and even the existence of formal documents bearing his name, does not alone decide the question of the identity of the employer; the substantive employment relationship and the identity of the person who actually exercised the employer's powers must be examined separately.  On the other hand, even the absence of registration in a person's name does not negate his status as an employer, where it has been proven that he managed the business and actually employed the employee.
18. The Court's Decision - After reviewing all the material submitted to the court file and the various testimonies and considering the arguments of the parties, we reached the conclusion that the plaintiff was employed by the defendant, who was his employer together with Nizar. In other words, it is a model of joint employers.  Below we will detail how we reached this conclusion.  Before we do so, we note that the defendant did object to such an argument in his summaries, noting that it was an expansion of the façade^[12].  However, we note that this is an unequivocal legal conclusion that stems from the totality of the evidence and testimonies that were placed before us.
19. On the merits of the matter - The evidentiary basis presented to us, through the testimonies and documents submitted to the court file, shows a division between the operational and day-to-day aspect of the employment, which was mainly in Nizar's hands; and the legal, business and economic aspect of the business, which was substantially connected to the defendant. The combination of these two layers leads to the conclusion that the two - the defendant and Nizar - were the plaintiff's joint employers.
20. As for Nizar, the picture is clear and unequivocal (and we will reiterate that this decision is relevant only to the present proceeding): the plaintiff testified that Nizar was the one who hired him, agreed with him the terms of his salary, paid him his salary, gave him instructions during the work, and handled his absences and vacations^[13]. In his testimony, Salim also described Nizar as someone who employed him in the mafia, agreed with him the salary, paid him and gave him instructions^[14].
21. We will turn Also to his confession The Clarity of Nizar, that he noted Because he The owner and manager of the bakery, The Responsible and Controlling Mafia^[15] (And while clarifying that our decision in this case, with respect to Nizar specifically, may change in the additional proceeding). Nizar also confirmed (and inter alia in his testimony) that he was the one who hired the plaintiff to work, agreed with him the salary, paid him it in practice, gave him ongoing work instructions and even signed the checks and operated in the bakery's bank account, and that he "The owner, manager and representative for all intents and purposes"^[16].
22. This is also evident from the evidence relating to the day-to-day conduct of the business, and it can be concluded as follows: Nizar was the factor with which the employees conducted themselves in their daily work affairs, and he was the entity that actually exercised the employer's powers^[17]. Therefore, with regard to tests relating to hiring, determining working conditions, payment of wages, giving instructions and supervising work, the evidence clearly points to Nizar.
23. However, The fact that Nizar was the dominant factor in the day-to-day management of the bakery does not, in itself, exclude the possibility that another person had the status of an employer. As noted in the case law cited above, the auxiliary tests should not be applied technically, but rather the entirety of the connections to the business and to the employee should be examined.  In this case, there is a significant objective infrastructure that connects the defendant to the bakery, as he was the registered owner of the business vis-à-vis all the competent authorities, And those who enjoy their profits bear their expenses (In the absence of any other evidence to the contrary).  It's also about who who has been in the business from time to time, while giving administrative instructions.
24. Our conclusion that the defendant is a joint employer of the plaintiff, together with Nizar, is first based on two main evidentiary layers, which indicate the defendant's deep financial involvement in the bakery. First, "Elnor Bakery" is registered in the authorities in the name of the defendant in the relevant years of the lawsuit.  See Tax Authority Document - Customs and VAT Department The defendant appears as the owner, next to the name "Elnor Bakery" and the date of opening of the bakery in November 2012^[18].  And to be precise - The defendant is registered as the sole and exclusive owner of the mafia: "I hereby confirm that a case is being conducted by the Acre Assessor: 203413976 Hassan Tair, Khaled.  Opening a File/Business - 01.11.2012.  Branch - Manufacture of baked goods.  The name of the business is Elnoor Mini Market.  Business Address - 11 Ben Ami St., Acre".
25. Similar registration exists At the National Insurance Institute, where the defendant is registered as the owner of the bakery and as a self-employed person who works there (and only in it - on the relevant dates of the claim), and as someone who employed a number of employees in 2023,6 in number. This is also the case in previous years and again since 2012, and consecutively.  It should also be noted that the defendant is registered with the National Insurance Institute as a salaried employee only as of January 1,2023.  In other words, he had no income as an employee beforehand, and his claim that he previously worked in another bakery that belongs to his family has not been proven.  Asher It is located in Shfar'am.
26. In his cross-examination, the defendant did not know how to explain these perplexities, and he claimed that "... In Acre nothing, I didn't earn anything".  However, when asked "...  So that the National Insurance Institute writes that you work as an employee, that is, on a paycheck, only from 01/01/2023, what happened on 01/01/2023? Did you start working in a new place?", he did not know how to answer, and answered that "...  No, I don't know what it is.".  Later, when asked again "Could it be that Nizar reported you in 2023, that you are working as an employee somewhere?", he replied "I don't know"^[19].
27. The defendant and his witnesses even tried to portray the defendant as a man with low abilities, who was unaware of the events around him. The defendant claimed in his affidavit that: he studied only until the ninth grade; his Hebrew is very basic; He doesn't know how to deal with paperwork; he has a difficulty."Tell a story from start to finish"; He doesn't know how to connect things or give explanations^[20].  These claims were not backed up by any objective evidence or testimony, nor They convinced us.  They are also contradict the testimony of the defendant, who stated that in the bakery in Shfar'am he does serve as a responsible party, and inter alia as a manager of the employees^[21].  We should also refer to the words of the defendant himself, who said that "Admin Name"^[22] (i.e., at the bakery in Shfar'am).
28. The defendant and his witnesses even denied the authorities' records on various grounds. Nizar claimed that "At a certain point, I took the step that I was supposed to take a long time ago, and I transferred this business to my name, and closed the file in Tair's name.  But he had assessment differences with the National Insurance Institute, so I spread out the amount for about 5 years.  I was told by Tair's lawyer that the National Insurance Institute had submitted a notice stating that Tair was still registered as self-employed, even though I closed his file, I don't know the reason for this but maybe because of this assessment and deployment differences, it doesn't make sense for Tair to be self-employed when he works in a bakery in Shfar'am"^[23].
29. However, even these claims were not proven by the defendant and his witnesses (including Nizar), and the official documents of the state institutions were not contradicted, and when the case law even determined that the registration of a certain business imposes on the registered business owner the burden of contradicting the presumption that he was the owner of the business^[24] - A burden that was not lifted by the defendant. This includes no proof that Nizar entered into any 'debt distribution agreement' with the National Insurance Institute, nor did he prove that he himself paid/pays any amount to the National Insurance Institute, for the mafia's debts.
30. Moreover, the defendant and his witnesses did not explain at all why the mafia was artificially registered in the defendant's name. Jamal testified that "...  I registered the company in the name of my brother, who is named Tair".  When asked about the reason for this, he did not answer matter-of-factly, claiming that "...  In the end, I had it, we had a rush, we had pressure in the bakery in Shfaram"^[25].  He further claimed that after he opened the bakery in Acre, he transferred the ownership of it to Nizar (and all this, without any connection to the defendant).  However, no logical explanation was given as to why and why the defendant's brother, who works with him in another bakery in Shfar'am, would open another bakery business in Acre in his name.  While it is ostensibly not I know about it.
31. Second, in addition to the documents of the state authorities, it should be noted that the financial activity of the bakery was conducted through an account at Bank Hapoalim, which was opened on November 18,2012 and registered in the name of the "Elnoor - Tair Hassan Bakery", together with the defendant's ID number^[26]. The bank itself confirmed that the account was managed under this name during the relevant period.  The many checks drawn from the account and presented in the court file also bear, repeatedly, the following details: the name of the bakery, the name of the defendant, the defendant's ID number, and the details of the bakery.
32. Not only that, The checks also include the defendant's own phone numberAccording to the defendant's attorney's confession at the preliminary hearing: "In response to the court's question, I note that the mobile phone listed in the check is indeed the defendant's"^[27]. To be precise, the matter was not classified to any point in time.  In other words, it is the defendant's current phone number.  Thus, inter alia, tangents from 2015 and 2016 emerge.  In later checks, including from 2019, the bakery remained identified with the defendant's name and the same bank account, as well as the defendant's phone number.
33. The defendant did claim that the signatures on the checks Bank Hapoalim Account are his, but this claim has not been proven either. The defendant even stated that he intended to submit an opinion in the field of the manuscript, but this was not submitted, with all that this entails regarding the failure to submit relevant evidence^[28]: "Regarding Bank Hapoalim...  I personally have a problem with this requirement, because by doing so I will prove that the checks were not registered by me and they were not signed by me at all.  I can prove this claim with certainty by comparing it with the 4 copies of checks sent by plaintiff No. 2.  But if I already have to apply for an opinion on the matter, it is preferable that this opinion relate to all the checks that the court ordered to be produced(M)."
34. Later, the defendant claimed in the affidavit of the main witness that "... My lawyer recommended that I bring an opinion to prove that it wasn't my signature, but I didn't have enough signatures to compare for the expert to compare to bring the farm (e)Opinion"^[29].  This is a puzzling claim, in light of the mafia's many checks from Bank Hapoalim, and as which were attached to the court file.  Moreover, the court could have been asked to issue an order to Bank Hapoalim to submit additional checks to the court file - which was also not done by the defendant.  Insofar as the defendant wanted to prove that he had no business connection whatsoever to the mafia, and that he did not bear its expenses or receive its profits, he should have submitted the details of the current account Own - Whether from Bank Hapoalim, or from another bank.  His refusal to do so acts in accordance with his obligation.
35. Moreover - The defendant and Nizar did not present any sale agreement, title deed, written trust agreement, or other legal documentation indicating that the defendant's connection to the business was severed, or that the ownership thereof was lawfully regulated vis-à-vis the family entities that actually managed it. If this were only a temporary formal arrangement, within the framework of that family initiative, it would have been expected to present a clear evidentiary basis backed by documents regarding the circumstances that led to the continuation of business activity under the defendant's identity over a long period of time - an infrastructure that was not presented to us at all.
36. As for conduct This, We will turn to case law in which it was held that "A litigant is presumed not to withhold evidence in his favor from the court, and if he refrains from bringing relevant evidence that is within his reach, and he has no reasonable explanation for this, it can be concluded that if the evidence had been brought, it would have acted against him"^[30]. We will mention Also, that has already been determined In case law that the failure to bring a relevant witness and/or evidence serves the duty of the party who refrained from presenting them, and who had an interest in doing so^[31]:

"Sometimes, the manner in which a party conducts his case in court has evidentiary significance, similar to circumstantial evidence, and it is possible to give evidentiary significance to the failure to submit evidence.  Conduct such as this, in the absence of a reliable and reasonable explanation, acts in accordance with the duty of the person who takes it, since it establishes in fact a presumption of fact, which is rooted in logic and life experience, according to which the law of abstention is like an admission that if that evidence had been brought, it would have acted in accordance with the duty of the abstainer and supported the opponent's version.  In this way, evidentiary weight is in fact given to the evidence that was not brought.  When a party has a reasonable and reliable explanation for the non-testimony of a witness on his behalf or for his failure to provide evidence, the explanation will omit the basis under the existence of the presumption that was created for his duty due to the failure to bring evidence."

37. As for Nizar, he confirmed in his testimony that the bakery was opened from the outset through the defendant, who signed the documents for opening the files with the authorities, and the business bank account was opened in his name^[32]. According to this version (which was also repeated by the defendant and Jamal), the original attempt to open the bakery in 2012 was born as part of a family initiative in which Jamal and Nizar were involved, with the defendant only putting his name forward for the purpose of registration and opening the files^[33].  They also claimed that later on, the actual management of the bakery was transferred to Nizar, with the intention of transferring the official registration from the defendant's name to Nizar's name (which did not happen in the end).  As for Jamal, he He claimed in his testimony that he sold the bakery to Nizar for ILS 300,000 (It should be noted that This is a claim that has not been made before In Proceeding, and in any case, it was not proven by any evidence).
38. Thus, we are faced with two possibilities:

On the one hand, it is possible that the plaintiff is correct in his claim that the defendant was the owner of the bakery for all intents and purposes - and as is evident from all the documents mentioned above, of the Income Tax Authorities, the National Insurance Institute, and Bank Hapoalim.  This theory is also supported by the fact that the defendant refrained from disclosing relevant documents on his part, in order to refute these documents (for example, the bank statement, and in order to show that he did not receive or pay any money related to the mafia^[34]), and even refrained from submitting an opinion in the field of manuscripts.