Labor Dispute (Haifa) 25884-09-24 Khaldun Hamdan – Tair Hassan - part 6

On the other hand, it is possible that the defendant is correct in his claim that he established the mafia many years ago, but his involvement was limited to signing the forms and nothing more, and he completely forgot about the matter after so many years.  This forgetfulness even led him to the fact that when the lawsuit was filed against him, he did not even specify in the statement of defense and in the preliminary hearing that there was indeed a bakery located in Acre, that belonged to his uncle and that in the past belonged to him.  He was even surprised by the discovery of this figure.

39. With respect to the second option, See, for example, the defendant's arguments, who noted that "... These documents surprised me very much because I never knew about them and as you claimed in the honorable court and I still claim even now I did not manage the business in Acre and I was not connected to this business"^[35].  He further claimed that "...  And honestly, I was very surprised to know that there is a registration in my name regarding this business in Acre that is owned by my uncle.  So I asked my brother Jamal about this thing, he said and tried to remind me that in 2011 or 2012 we wanted to open a bakery business in Acre, and it came and stopped at all the paperwork to open the business.  Jamal claimed that I signed this paperwork, including Bank Hapoalim, but this move was not completed and the person who opened the business was my uncle.  I swear that I don't remember anything of what my brother Jamal told me, at the time I was 21 years old, I don't understand these things"^[36].
40. Which of the two is a more likely option? At this point, it is worth mentioning the age-old - and not miraculous - theory of Occam's razor, which deals with the principle of the primacy of a theory that requires a small number of unproven assumptions^[37]. In the case before us, the defendant's theory is based on a large number of such basic assumptions, which in any case have not been proven, and in many cases they are also illogical.  On the other hand, we prefer the more logical and probable version - that the mafia did indeed belong to the defendant, who owned it during the relevant years of the lawsuit, and served as the plaintiff's joint employer, together with Nizar.
41. We therefore determine that the defendant's claim that he served only as a registered entity remains an oral and verbal argument, which does not provide a plausible explanation as to why he remainedThe Mafia recorded in his name over the years, and why the economic activity continued to be conducted in his account and through checks on which his name and the name of the bakery were found. To be precise, we are not dealing with a single technical record, but rather with a significant accumulation of data: Registration The Mafia of the defendant's name, an active bank account in his name, business checks coming out of his account, telephone number and address The Mafia registered in his name, and the fact that Nizar operated on this account as an authorized signatory/power of attorney only.
42. 0042. However, this is not an issue The Evidence, only, and We are not dealing only with logical hypotheses. As a complement to our conclusion above, See the managerial actions that were proven that the defendant performed in the bakery, from time to time.  For example, The plaintiff claimed that the defendant would come to the bakery, for example, when income tax audits were conducted there; in the case of theft; when there was a shortage of workers^[38].  These claims were not contradicted at all during his testimony.
43. 043. Among other things, When asked The Plaintiff "How many times does he come to Acre?", he replied that"I can't count exactly, when things are needed he arrives, when he renovates the bakery, he arrives, when we transferred the equipment from the house(a)Here he came to the place where he came from, when the cutting machine broke down, when Tawfik's father would come to fix it, he would bring someone and Tair would have something in Acre, he would come in and see"^[39]. The plaintiff also added and noted as follows: "If there was something necessary, he would be there.  He would come, how many times did he get there, under the conditions, in the situations he was, there was something wrong, he would get there"^[40], and also "...  How did I know that the owner of the business would light up? Because when there were cases, Tair had to be there..."^[41].
44. See also the affidavit of Salim, a witness on behalf of the plaintiff and the person who worked with him in the mafia^[42]: "Even though all the bakery work was managed by Nazar, I knew that the owner of the bakery and the person in whose name the bakery was registered was Thayer Hassan, Nazar's nephew. Tair would come to the bakery from time to time (Tair ran the Al-Nour bakery in Shfar'am together with Jamal).  Tair would come to the mafia only in special times of pressure (when he stood at the checkout).  I remember that he came to the bakery following two tax audits that were in the bakery and in two cases of theft (once we caught a customer trying to steal cigarettes and once we saw on the cameras another customer trying to steal cigarettes - in both cases Nazar called Tair to the bakery and he was the one who handled the matter".
45. See also Salim's testimony: "When there was a problem, Tair would come, and I knew that the business owner would come as a result of a problem that happened in the business"^[43], and "... There was a problem with the income tax, Tair would come to the business...  I don't remember the exact date, but for a while we had a problem with the income tax"^[44].  Salim even reiterated in his testimony, several times, that "I know that the bakery belongs to Tair"^[45].  For the sake of completeness, we note that the witness Zaher stated, unlike the plaintiff and Salim, that he knew that the mafia belonged to Nizar, but in view of the totality of the testimonies and evidence on the part of the plaintiff, we do not believe that a one-time answer (He briefly interrogated) leads to the rejection of the plaintiff's claims.
46. Claims The defendant also suffered from changes and contradictions, in a way that demonstrated that they should not be given any reliance whatsoever. First, in an affidavit of support attached to the motion for adjournment filed in the proceeding, he claimed that "...  I've never been in the aforementioned business"^[46].  In contrast, in his principal affidavit, he agreed that he did occasionally enter the mafia, when he "Visiting Acre...  Very rarely"^[47].  The changes in the version are puzzling.  To this must be added the versions of the plaintiff and Salim - who repeatedly claimed that the defendant would visit the business, as someone who was one of its owners (i.e., not a 'private visit'), and as someone who was present at various managerial events - when there was pressure at the cash register; when one of the bakery employees was suspected of theft; when the Income Tax audits.
47. We will reiterate that There is no necessary overlap between ownership of the business and the identity of the employer, and it should not be ignored that on the day-to-day level, Nizar was the dominant factor that hired the plaintiff, determined the terms of his employment, gave him instructions and supervised his actual work. However, the fact that the defendant did not deal with the plaintiff in a routine manner does not negate his status as an employer, but rather integrates into the overall picture of the division of duties: Nizar exercised the management powers in the field, while the defendant held and provided the business, legal and financial infrastructure of the bakery.
48. This conclusion is also consistent with the rule that the identity of the employer is examined according to the nature of the engagement, and not according to the internal division of duties that has been determined between the parties involved^[48]. Therefore, where two factors, each on a different level, fulfill essential functions of the employer, and the accumulation of ties between them and the employee and the business justifies this, it is not necessary to artificially choose one of them and ignore the other.
49. In fact, this is also evident from the case law on which the defendant relied and which we have already addressed above - In the matter ABRAHA and the Tuvia case. However, this ruling does not determine that the formal registration is weightless, but rather that it should not be viewed, when it stands alone, as the be-all and end-all.  The decision in any case depends on the totality of its circumstances, including the question of whether, alongside the registration, there is additional evidence that indicates a real connection of the registration holder to the business and to the employee's employment.
50. In the matter ABRAHA The argument to recognize family members as joint employers was rejected on the basis of registration alone, after the actual employment relationship was examined, and it was found that their involvement in the employee's employment was not proven. In our case, however, our conclusion does not rely on the registration alone: alongside it are the business bank account that was managed in the name of the defendant, the checks drawn from him and carrying the details of the defendant and the bakery, testimonies regarding the defendant's arrival at the bakery in situations that required managerial handling, as well as the evidence regarding his involvement in providing the business and financial infrastructure that enabled its activity.  The combination of these data, which is examined against the background of the lack of objective evidence to the contrary, distinguishes our case from cases in which the registration remains a mere formal figure.
51. Also The Tuvia Matter does not lead to any other result. Indeed, it was held there that liability as an employer should not be imposed on a person solely because the business or pay slips were registered in his name, when it was proven that the employee knew who he contracted with and who he actually employed.  However, the conclusion in our case is based on a broader infrastructure than the registration: the defendant not only appeared in the official documents, but remained connected to the business for years on the economic and business levels, and in addition, his involvement in what was happening in the bakery was proven from time to time.  Even if Nizar was the dominant factor in the day-to-day management, this does not negate the defendant's status as an additional employer, where parallel material connections were proven.
52. Therefore, based on the tests set out in the case law and quoted above, and on the basis of the accumulation of evidence and the testimonies - Both in relation to the actual management of the work, and in relation to the ongoing legal and financial relationship - we reiterate that the defendant and Nizar served as joint employers of the plaintiff. Therefore, with regard to the rights deriving from the period of employment, the two parties should be considered joint employers, and accordingly the other components of the plaintiff's claim should be examined.  It should also be clarified that at the present stage, and as an employer of the plaintiff, the defendant must bear all the obligations arising from the judgment.  However, it is clear that the plaintiff will not be able to be repaid twice for the same charges, both from the defendant and from Nizar (if and to the extent that the claim against him is accepted in any way).

C.3.    Second Dispute - Employment Period

53. The parties' arguments - the plaintiff argued that he was employed in the bakery from January 12,2014 until February 2021, for about 7 years, and that throughout the entire period of his employment he worked continuously. On the other hand, the defendant denied the plaintiff's claim, but provided an unclear version regarding the dates of the plaintiff's employment - as we shall see below.
54. The Tribunal's Decision - The Plaintiff's Reliable Version Regarding the period of his employment was not contradicted in any way during his testimony. However, his version is not only based on his testimony, but also on the testimony of Salim.  Among other things, Salim stated that he began working at the bakery in July 2016, and that throughout the period of his work he worked alongside the plaintiff^[49], when they both worked side by side for long periods of time, and even lived together with other workers in the bakery building^[50].  Salim even described the plaintiff as someone who initially worked as a general employee, and later advanced to the position of shift manager, where he was responsible for the cash register, payments to suppliers and customers, and the work of other employees, including Salim himself^[51].
55. Here, too, and like the plaintiff, Salim's testimony did not contradict any of his claims, nor did it contradict the length of time the plaintiff worked in the bakery. Salim's testimony therefore paints a picture of the plaintiff's prolonged integration into the bakery's work system, and on the other hand, it contradicts the defendant and his witnesses' attempt to reduce his period of employment to a short period, which according to the claim began only at the end of 2017^[52].
56. In relation to the alleged period of employment, the photographs presented by the plaintiff must also be taken into account^[53], which documents it in the bakery, alongside other employees and during work activity, including during the COVID-19 pandemic (it can be seen that the employees are wearing masks). Admittedly, the photographs alone do not prove the date of the start of work in 2014.  However, they add to the overall evidentiary infrastructure, and in themselves strengthen the plaintiff's very integration into the bakery's work over time.
57. On the other hand, the version of the defendant and his witnesses regarding the date of the commencement of the plaintiff's employment was not uniform, nor was it supported by objective documentation. In the framework of his affidavit, Nizar stated that to the best of his memory, the plaintiff began working at the bakery in "Mid or end of 2017 to early 2021, and even admitted that he was not sure of the exact date (the defendant because of the-Ma opposes this statement in his summaries, but it should be noted that this is a major witness on his part^[54]).  It is therefore a general assessment based on memory, and not a record or a real-time document.
58. Bilal, who also testified on behalf of the defendant, also did not provide sufficient infrastructure for the version Regarding Late start work more, than claimed by the plaintiff. In his affidavit, he stated that "to the best of his memory" the plaintiff worked at the bakery for about three years, with the first year being unstable, and that his work ended at the beginning of February 2021^[55].  Here, too, this is testimony that does not prove the defendant's claim that the plaintiff began working in the middle or end of 2017.
59. As for Nizar, he claimed that there were records regarding the plaintiff's work, and its various dates^[56]. However, these records were not presented by the defendant, with all that this entails regarding the failure to present evidence that is under his control (and in the absence of any other claim in this context).  In our opinion, since the entity that was directly responsible for the plaintiff's hiring indicates that there is a record that could shed light on the date, but the record is not presented, there is no justification for giving the defendant's inaccurate version a weight that exceeds the cumulative weight of the testimonies and other evidence.
60. Beyond the aforesaid, the plaintiff, as recalled, was not given notice of the terms of the transaction. We note, that the Notice to the Employee Law imposes a duty on the employer to provide the employee with a written notice detailing, inter alia, the identity of the employer and the date and conditions of commencement of employment.  Where the employee was not given notice in accordance with the law, and in the course of the proceeding a dispute arises regarding a matter that the employer should have specified in the notice, the provision may apply Section 5A The law has a notice to the employee, which transfers the burden of proof to the employer, in accordance with the conditions set forth therein^[57].  The purpose of the arrangement is to deal with, inter alia, a situation in which the employer, who was obligated to hold and provide the relevant information, does not do so.
61. In our case, this is all the more valid in view of the fact that there is no Presented any registrations on behalf of any of the bakery entities, and not a notice of the terms of the transaction, and which can show the date of the plaintiff's commencement of employment. Also Not Featured pay slips and attendance records in relation to the period in dispute.  This lack of evidence acts as a whole to the defendant's duty on the evidentiary level, and with regard to the period of employment of the plaintiff.
62. To summarize the current dispute - We conclude and determine that the plaintiff was employed in the bakery from January 12,2014 until February 10,2021 (as stated above, the date of termination of employment is not in dispute).

C.4.    Third Dispute - The Scope of the Plaintiff's Position

63. The parties' arguments - the plaintiff argued, thus: He worked long and long hours in the bakery - 109 hours per week, which is 428 hours per month, and for 7 days a week; He worked between 15 and 17.5 hours a day, depending on the different days of the week: on Sundays from 04:00 to 21:00 (17 hours), on Mondays and Fridays from 04:00 to 19:00 (15 hours), and on Saturdays from 05:30 to 23:00 (17.5 hours). On the other hand, The defendant claimed that the scope of the hours claimed by the plaintiff is denied, and that this is an exaggerated version that is inconsistent with the actual reality of the work.
64. The Tribunal's Decision - The plaintiff's claim regarding Marine The work was not contradicted in any way by the defendant and his witnesses, and we determine that the plaintiff worked all day of the week in the bakery. However, And even though If attendance reports were not submitted on behalf of the defendant and his witnesses (with all that this entails regarding the applicability of Amendment 24 to the Wages Protection Law), the plaintiff's claim regarding continuous work every day, of more than 15 hours on a regular basis, was also refuted.
65. In this regard, all the testimonies - including that of the plaintiff - showed that the work in the bakery was actually carried out in the form of shifts. During his testimony, the plaintiff himself described Bilal's arrival for a shift change as follows: "I would say, a morning shift worker...  Bilal arrives, to continue the shift work"^[58].  These statements indicate a clear division of labor into regular shifts, and refute the version that the plaintiff worked continuously throughout the day.
66. In addition, the plaintiff also contradicted his claim of 17 hours of continuous work in his testimony, during which he described that he worked a defined shift and was replaced by Bilal: "At the end of the shift, when Bilal starts cleaning, he takes the money to Nizar"^[59]. This testimony emphasizes that the plaintiff's work was defined and time-bound, and that he finished his daily work upon the arrival of Bilal, who continued the work in the next shift.
67. To summarize the current dispute - We conclude and determine that the plaintiff worked 7 days a week (including the day of rest). Since the plaintiff's testimony regarding the working hours was not acceptable to us, as stated above; but on the other hand, the defendant and his witnesses did not present a clear version of the working hours, we determine that this was a full-time job, between 06:00 and 15:00 (9 hours a day).  The calculations of the plaintiff's overtime hours and wage differentials that will be detailedand Later on, the judgment will be derived only from this shift format.

C.5.    Fourth Dispute - Was the Plaintiff Dismissed or Resigned

68. The parties' arguments - the plaintiff argued, as follows: He was fired from his job by Nizar on February 10,2021, against the background of a deterioration in his medical condition (fracture / "kilo"), which was caused by strenuous physical work and prolonged standing; His dismissal was carried out after he found it difficult to continue to perform double and intensive shifts, and he moved to work shifts of about 10 hours a day; he was fired from the bakery without a lawful hearing and no prior notice; He is entitled to severance pay, advance notice pay, and compensation for unlawful dismissal. On the other hand, The defendant claimedThus: the plaintiff left his job voluntarily and feared for his life; The departure stemmed from an incident against the background of an affair he had with a married woman, after her husband came to the bakery and threatened him.
69. The normative framework - As a rule, where an employee claims that he was fired, and the employer claims on the other hand that the employee resigned or left the job voluntarily, the burden is on the employee to prove the actual dismissal and the circumstances of the termination of the employment relationship. The decision is made on the basis of the totality of the evidence, and it is not necessary that the dismissal be made by an explicit statement; it can also be learned about them from the actual conduct of the parties and from the context of the matter at the time of termination of employment.  In the rulings of the National Court it was also emphasized that the overall picture must be examined and which of the parties actually brought the employment relationship to termination^[60].
70. The Tribunal's Decision - After considering all the evidence, the testimonies of the parties and the witnesses, we prefer the defendant's version of the circumstances of termination of employment of the plaintiffover the plaintiff's version. The defendant's version is more consistent with the overall evidentiary basis, and in particular with the plaintiff's own conduct and with the objective evidence relating to the manner in which his work was completed.  We will detail our decision below.
71. First, it should be noted that the plaintiff's version regarding his dismissal on medical grounds was not uniform throughout the proceeding. At first, he claimed in the statement of claim and in the affidavit that he was fired due to his medical condition and problems of a "fracture-kilo"^[61]; In his affidavit, he also claimed, in addition to these claims, medical problems due to appendicitis surgery that became complicated and gallstones^[62]; And in his interrogation he presented a third version and spoke only about "Stones in the appendix"^[63].  The claim should be rejected, and in light of the lack of supporting documents on the medical aspect of all the claims in question (documents were submitted by the Palestinian Authority - but they were not proven to be relevant, and they were not translated by the plaintiff)^[64].
72. The plaintiff even went on to present a fourth version, completely different from the previous ones quoted above, according to which the background to his dismissal was a physical confrontation with a "junkie guy" on February 10,2021, following which Nizar ordered him to go home for a few days out of fear that the police would come to the bakery and catch the employees who were staying there illegally^[65]. The changes in the versions harmed the plaintiff's version, and led to its rejection.  Moreover, the plaintiff's version was not proven by the evidence in any case.
73. On the other hand, the version of the defendants and their witnesses Regarding the circumstances that led to the termination of the plaintiff's work was reliable and continuous, and it was also supported by solid external evidence throughout the course of the proceeding. The defendant and his witnesses, Nizar and Bilal, presented a uniform and clear factual version according to which the plaintiff was never fired from his job, but left voluntarily and out of grave fear for his life against the background of an affair he had with a married woman in Acre.  According to their version, the woman's husband found out about the affair and came to the bakery to look for the plaintiff and harm him, which led them to act quickly to remove the risk and smuggle him away Same In their car safely to the bakery in Shfar'am and from there to his home^[66].
74. The defendant's version is supported directly and in real time by a recorded conversation on September 11,2024 initiated and recorded by the plaintiff himself, in which Nizar is heard telling him^[67]: "... And when you left, I didn't want you to leave my job, if the problem hadn't happened in Acre.  And you're the person who knows it best", and the plaintiff replied to him clearly and immediately"Indeed".  Later in the recorded conversation, Nizar added:And until you left the store, and I took you out of the place that day, I did my best to get you out of the place, and I led you to Mivtachim, to Shfar'am.  And I told you, it won't work anymore for you to continue working here, because...  Those people were waiting for you, I mean, they wanted to kill you, and the plaintiff again replied and confirmed his words^[68].
75. To summarize the current dispute - We determine that the plaintiff resigned from his job on February 10,2021. Present This conclusion, the plaintiff is not entitled to the following components of the claim: severance pay, advance notice and compensation for unlawful dismissal, and his claim to receive These rights - Dina To be rejected.

C.6.    The rights to which the plaintiff is entitled

76. After we determined that the plaintiff worked in the bakery for about 7 years, from January 12,2014 to February 10,2021, and in light of our decision that he resigned from his job, it remains now to discuss the remedies to which the plaintiff is entitled in light of these determinations. At the beginning of the decision in this part, we note that the defendant and his witnesses - including Nizar - did not refer in their affidavits at all to social rights to which the plaintiff is entitled, or those that were allegedly paid to him by someone on behalf of the mafia.  Moreover, the plaintiff was also not questioned on this issue at the time of his testimony.
77. It should also be noted, in general, that the plaintiff was employed while depriving him of his rights under the law, and when the defendant did not fulfill his duties under the provisions of the law at all, and the plaintiff did not receive the basic documents required in the framework of an employment relationship: notice to the employee of the terms of employment, pay slips and signing of attendance reports. In addition, the plaintiff's cogent rights were deprived of him, and he was not paid pension payments, convalescence pay, vacation pay, travel pay and overtime pay.
78. And in more detail - Completion of wages and overtime payment - The plaintiff petitioned for payment of wage differentials on the grounds that the salary actually paid to him was lower than the minimum wage. The plaintiff based this claim on the work format claimed by him, according to which he worked on a larger scale than that determined by us above, and from which he derived the value of his work hour and compared it to the minimum wage that was in effect at the relevant periods.
79. The Law of This Component of the Claim To be accepted in its small part. As determined above, the plaintiff was unable to prove the work format on which he based his calculation.  Instead, after examining the totality of the evidence, it was determined that the plaintiff worked 9 hours a day, between 06:00 and 15:00, for 7 days a week.  Therefore, since the factual basis on which the plaintiff's calculation was based was rejected, in any case the calculation of the value of the hour on which he made his calculations should not be accepted, nor the derivative conclusion that his salary was lower than the minimum wage.
80. Overtime Pay Claim - According to Hours of Work and Rest Law, 5711-1951, additional payment must be made For overtime at a rate of 125% for the first two additional hours of the day, followed by an additional 150%. More states The Law, that an employee is entitled to a 50% increase in his salary for work on the weekly rest day, and to the extent that he works overtime on the rest day, his salary for the first two overtime hours is 175% and then 200%.
81. If the employee's working hours on the weekly rest day exceed the weekly quota of hours (which during the plaintiff's period of employment was initially 43 hours, and then 42 hours), then all the hours worked on the rest day are overtime hours beyond the weekly quota, in which case the employee is entitled to a salary of 175% for the first two hours and a salary of 200% for the remaining hours^[69].
82. In the period until March 31,2018, the workweek was 43 hours, and the hourly wage was calculated on a monthly basis of 186 hours. As of April 1,2018, the workweek in the economy was shortened to 42 hours, and the hourly wage was calculated on a monthly basis of 182 hours.  Therefore, we will divide the calculation into two periods:

-           The period from September 1,2017 to March 31,2018 (hereinafter: "The First Period"): The value of the work hour was ILS 54.19, according to the following equation - ILS 10,080 (the monthly salary claimed by the plaintiff, which was not concealed and in fact was not even denied by the defendant), divided by 186 hours.