Blumberg Segal LLP

Blumberg Segal LLP
Barristers & Solicitors | Trademark Agents
contact us 416.361.1982

The Ontario Superior Court of Justice has recently held that a long-term employee could not be terminated for just cause for having arrived late for work on the day he was terminated.

In Violo v. Delphi Communications Inc., 2014 ONSC 7008 (SCJ), the Plaintiff, Giacomo Violo, was employed as a waiter/bartender at Roma Restaurant in Toronto for 29 years.  For the first 28 years, the owners of the restaurant were his brother and sister-in-law.  In 2009, the Defendant  corporation purchased the restaurant.

The official reason for dismissal given to the Plaintiff on the day of his dismissal was that he had arrived late for work that day.  The Plaintiff did not deny that he was late for work that day.

In defending the Plaintiff’s Action for wrongful dismissal, the Defendant claimed just cause for the dismissal, including allegations of chronic lateness for work, alcoholism and the Plaintiff’s discourteous and boisterous nature.

The Court, however, found that there was no cause for the Plaintiff’s dismissal, finding that the allegation of chronic lateness was contradicted by the Defendant’s own records.  As for the Defendant’s other allegations, the Court accepted the evidence of a former manager of the restaurant who had deposed that he had never seen the Plaintiff drunk at work and who described the Plaintiff’s relationship with clients as “excellent” and that the Plaintiff  “was always smiling and joking with them.”

The Court held that the Plaintiff had proven his claim for wrongful dismissal, finding that dismissing the Plaintiff for arriving late was a grossly disproportionate response to such misconduct.

With regard to determining the appropriate amount of reasonable notice the Plaintiff was entitled to in these circumstances, the Court noted that the Plaintiff, who was 51 at the time of the dismissal, was entitled to reasonable notice for a period of 15 months based on his “expertise, qualifications and 29 years’ experience”.

The Court found that the Plaintiff had made reasonable efforts to find alternative employment but had been unsuccessful.

In the result, the Court issued Judgment in favour of the Plaintiff as against the Defendant for the sum of $45,250.00, representing the amount that the Plaintiff would have earned, inclusive of tips, during a 15 months’ reasonable notice period.  The Court also ordered the Defendant to pay costs to the Plaintiff in the amount of $32,500.00.

From an employer’s perspective, this case demonstrates that when disciplining an employee for misconduct, particularly a long-term employee, the discipline must be proportionate to the misconduct.

From an employee’s perspective, this case demonstrates that long-term employment cannot simply be terminated on a whim, even if an employee has been guilty of some misconduct.

Blumberg Segal LLP handles employment law cases for both employees and employers.   If you have an employment related issue, we encourage you to contact us.

Ron Segal is a partner at Blumberg Segal LLP, practicing in commercial litigation, including employment law.  Ron can be reached at rsegal@blumbergs.ca or 416-361-1982 ex. 239.