How much does the work of an injured casual Palestinian worker cost?
Dec 27, 2022
From: Attorney Shlomi Hadar - John Geva, Hadar & Co. - Lawyers and Mediators
The National Court recognized a work accident involving a daily worker, a Palestinian, without insurance and without a work permit in Israel, and ordered National Insurance to pay!
introduction
A person falls from the roof of a house where contract work is being performed and files a claim to have it recognized as a work accident.
The regional court rejected his claim to recognize his injury as a work accident within the meaning of the National Insurance Law because he was not reported as an employee of the contractor and was not insured at the alleged date. The National Labor Court reversed the ruling and ordered National Insurance to recognize the incident as a work accident and compensate him accordingly.
The procedure in the Regional Labor Court
The District Court noted that there was no dispute that the plaintiff was injured when he fell from the roof (pergola) of a private house. The dispute was over the question of why he was on the roof.
The plaintiff at the time and the appellant today, claims that at the time of his fall he was employed by a contractor. However, when he filed a claim with the National Insurance Institute (hereinafter: " NISI "), his claim was rejected on the grounds that the appellant was not reported as an employee of the contractor and was not insured at the alleged date.
In the context of the lawsuit against the National Labor Relations Board, it is apparent that the plaintiff had difficulties summoning witnesses to testify in his favor. Additionally, in his testimony, the plaintiff testified that at the time of the injury, he did not hold a work permit in Israel, but he did have a residence permit. According to him, he had worked with the contractor several times, and that day the contractor, who knew him, picked him up. According to the plaintiff, the contractor offered him to work with him on roof tiles for two weeks.
According to the plaintiff, he received a screwdriver from the contractor, was asked to go up on the roof to dismantle the tiles, started working, and the next thing he remembers is waking up after 13 days in Tel Hashomer Hospital.
The procedure at the National Insurance Institute is based primarily on two testimonies. One, from the property owner, from whose words it can be concluded that the plaintiff was an employee of the contractor. He described it this way:
" I actually came to the conclusion that he was an employee of the contractor because I saw how he was managing the event and because he was upstairs. Because the pergola work was Doron's responsibility, and to raise the pergola there is a ladder and you have to lift the tools up. I didn't see them go up, I just saw that there was one down and one up ."
The second testimony in the National Insurance lawsuit was given by someone who worked with the plaintiff (who also strongly opposed its submission), according to which the plaintiff did not work with the contractor but arrived at the site around 7:30 AM, climbed a ladder "to ask if workers were needed" and after the contractor replied in the negative - fell .
The work inspector, who visited the site on the day of the accident several hours after it occurred, wrote a document in which he noted that the homeowner told him that the work was carried out by the contractor, but that the appellant did not fall from the ladder but stepped on plastic that was placed on the roof, and when the plastic broke, he fell into an opening between the concrete beams of the roof. The inspector also spoke by telephone with the contractor, who told him that he did not know the appellant (although he knew his name) and claimed that he had no dealings with him.
The Regional Labor Court noted that there was no dispute that the plaintiff was injured when he fell from the roof (pergola) of a private house. The dispute centered on why he was on the roof.
The plaintiff at the time, and appellant today, claimed that he was employed by a contractor at the time of the fall. However, when he submitted a claim to the National Insurance Institute (NII), his claim was denied because he was not reported as an employee of the contractor and was not insured at the alleged time.
During the NII proceedings, it was evident that the plaintiff had difficulty summoning witnesses to testify in his favor. In his testimony, the plaintiff stated that at the time of the injury he did not hold a work permit in Israel, though he did have a residence permit. According to him, he had worked with the contractor a few times previously, and on that day, the contractor who knew him picked him up. The plaintiff claimed that the contractor offered him a temporary job installing roof tiles for two weeks.
According to the plaintiff, he received a screwdriver from the contractor, was asked to climb onto the roof to remove tiles, began working, and the next thing he remembered was waking up 13 days later at Tel Hashomer Hospital.
The NII proceedings relied primarily on two testimonies. The first, from the property owner, suggested that the plaintiff was the contractor’s employee. The owner described it as follows:
"Actually, I concluded that he was the contractor’s employee because of how he handled the task and because he was up on the roof. The pergola work was Doron’s responsibility, and to lift the pergola, a ladder is needed and tools must be brought up. I did not see them go up, only saw one person below and one above."
The second testimony, from someone who worked with the plaintiff (who strongly opposed its submission), claimed that the plaintiff did not work with the contractor but arrived at the site around 7:30 a.m., climbed the ladder “to ask if any workers were needed”, and after the contractor declined, he fell.
The labor inspector, who visited the site a few hours after the accident, prepared a report noting that the homeowner stated the work was performed by the contractor, but the plaintiff did not fall from the ladder—rather, he stepped on plastic placed on the roof, which broke, causing him to fall into an opening between concrete beams of the roof. The inspector also spoke with the contractor by phone, who stated that he did not know the plaintiff personally (though he could identify him by name) and claimed there was no engagement or contractual relationship with him.
The basis for the rejection of the appellant's claim in the regional court was the lack of credibility of the plaintiff, which significantly affects the acceptance of his version. He added that the burden of proving the claim lies with the plaintiff and that no attempt was made to locate and bring to testify the contractor and the employee who was with the plaintiff.
Consequently, and when the victim's testimony did not convince the court, his claim was dismissed. The court added that "even if we were to determine that Doron brought the plaintiff to work on the site, we doubt whether he would have been considered an employee in the specific constellation that existed in this case," considering that he was included in "a casual and short-term workforce" so that "it is not at all clear whether the contractor had a 'plant' or not, since he did not report to the National Insurance Institute as self-employed and according to the reports to the National Insurance Institute, the contractor worked as an employee at all, and in any case, the plaintiff did not prove that he integrated into the contractor's organizational structure." In light of all this, the claim was dismissed, without an order for costs.
The regional court's ruling
The victim filed an appeal and claimed that He met the burden placed on him and proved on the balance of probabilities that he was injured while working for the contractor and that he should be considered his employee. Even if the work was planned for a period of approximately two weeks, he is not an "hourly employee" according to the definition in Section 1 of the National Insurance Law and is an Israeli employer, so the obligation to report and pay was incumbent on him in accordance with the law and the regulations under it.
In Tela He supported the regional court's ruling, on his own grounds, and believed that this was a factual determination based on an assessment of the evidence that there was no justification for interfering with, and that even if he had proven the circumstances "taking into account the alleged temporary nature, the fact that the appellant (according to his claim) offered his expertise to anyone who asked, because there was no permanence or commitment of any kind... and in any case the appellant did not prove that he had joined any enterprise to the extent that any of his alleged employers had."
Arguments of the parties in the appeal
The National Court ruled that, from the factual background, there is no dispute that the appellant was seriously injured when he fell from the roof of a house. There is also no dispute that at that time construction work was being carried out on the roof by workers on behalf of the contractor, whose services were hired for this purpose by the property owner. These circumstances of time and place, which are not in dispute, served as significant reinforcement for the appellant's version in the eyes of the Court, according to which he did indeed work for the contractor and carried out work on the roof that day in accordance with his instructions, since it was not alleged that there were additional contractors who carried out work on the roof and on the face of the matter there was no reason for the appellant to be on the premises of the house, which is privately owned, as he did not need to work there.
The National Court considered the testimony of the property owner, as an objective witness, that it was "clear" that he understood in real time that the appellant was an "employee of the contractor," to speak for itself, and the court found further support for this in the fact that the property owner was interested in the well-being of the appellant even after some time had passed, and the contractor did not reply to him that he was not his employee at all, but rather shared his concerns about the appellant's well-being and even stated that he had visited him in the hospital.
The property owner also emphasized that two workers were required to perform the work due to the need to hold the long wooden boards on both sides, and emphasized that the contractor himself did not do the physical work; the court concluded from this that one worker was not enough to perform the work, and it is undisputed that there was no additional worker on behalf of the contractor other than the same contractor who brought the injured person and the appellant at the time. Both the medical documents, starting with the MDA report and the hospitals, clearly and self-evidently stated that this was a work accident.
Considering these basic facts, the National Court held that the appellant met the burden of presenting the evidence imposed on him, along with his testimony in which he explained that he was hired by the contractor that morning to perform roofing work that was planned to last about two weeks, and that they agreed on a daily wage (which he ultimately did not receive).
Therefore, the court decided to shift the burden of presenting evidence to the shoulders of the unemployed, to convince that despite the facts and circumstances that seemingly speak for themselves - that the appellant was not on the roof of the house for work, but for another purpose. The court ruled that the National Insurance Institute did not meet this burden.
The Mossad chose not to invest any real resources in locating the contractor, and even waived his subpoena to testify. The court was not convinced that the appellant should have been held liable for not subpoenaing the contractor. When the Mossad failed to locate Doron with its resources, the court ruled that it was not reasonable to expect the appellant to succeed.
The court's unequivocal ruling that the appellant's testimony was not lost on the court, however, the reasoning given by the court did not convince the national court, which, in the circumstances of the case, reflects on its entire ruling.
The National Court ruled that the appellant was an employee of the contractor, not an "hourly worker," and therefore recognized his fall as a work accident. The National Court was convinced, as stated, that even if the planned work period was short; even if Doron did not have a "factory" in the physical sense, since he provided services at various construction sites; and even if he preferred to manage his business through employees hired to work "per project" and not permanently at his disposal, the facts that were proven show that an employee-employer relationship existed, and that the accident that occurred will be recognized as a work accident within the meaning of the National Insurance Law.
Thus, even in circumstances that in everyday life seem to be transient and temporary, any involvement of a person in a project may entail complex issues in labor law, tort law, and expose contractors to huge claims. As usual - planning, careful management, early consultation, close professional support from service providers to assess the risks, and adequate insurance backing can be a lifeline in times of trouble.
Discussion and decision
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