Long-Time Waiter Wrongfully Dismissed by New Boss

August 18th, 2015 by

In a recent decision, the Superior Court held that a waiter who had been employed for 29 years had been wrongfully dismissed after the restaurant had been sold to new owners. The plaintiff, one Giacomo Violo, had been employed in his brother and sister-in-law’s restaurant for 28 years when the business was bought by the defendant corporation. Within a year, Mr. Giacomo would find his employment terminated.

In its pleadings, the defendant asserted that it had numerous grounds to support the plaintiff’s dismissal for cause. It argued that he was chronically late, would arrive drunk, and had become “discourteous to clients.” However, Justice Chapnick quickly rejected these assertions. He found that the accusation of chronic lateness was refuted by the defendant’s own records, and accepted the evidence of the plaintiff’s witness that Mr. Giacomo had never arrived intoxicated and had an excellent relationship with clients.

On the issue of reasonable notice, the court held that fifteen months was a suitable period. Supporting this was the plaintiff’s age (fifty-one at the time of dismissal), his 29-year experience at the restaurant (notwithstanding that the defendant only employed him for 11 months), and his expertise (he had trained 4 staff before being fired). He found that, despite reasonable efforts to find replacement employment, Mr. Giacomo had been unsuccessful. In his words, restaurant managers wanted “young, pretty females,” and there was little work for a quinquagenarian.

In this case, the plaintiff also claimed that, in terminating his employment, the defendant discriminated against him. He claimed that the defendant had fired him in hopes of hiring one of those ‘young, pretty females’ to replace him, with whom his boss was allegedly having an affair. Despite the plaintiff’s evidence of the proclivity of his boss towards hiring attractive young females, Justice Chapnick held that Mr. Giacomo had not made out the issue of discrimination.

In determining the amount of damages, the Court was faced with competing amounts claimed by the plaintiff in his Statement of Claim and at trial. In his pleadings, the plaintiff had claimed his CRA declared yearly income of $39,000; however, at trial, that sum changed to over $45,000. Rejecting the plaintiff’s assertions that his tips would have brought his income closer to the latter figure, the Court found that the former was probably more accurate. Given the period of notice and a small deduction for income earned during, the Court awarded damages in the sum of $45,250.

While seemingly routine, this case should stand as a warning to persons acquiring businesses as a going concern. First, in determining what constitutes reasonable notice, courts will take into consideration the entirety of a person’s employment at a workplace, regardless of ownership changes. It doesn’t matter how long you’ve been their employer; what matters is how long they’ve been employed. Second, courts are not willing to blindly accept employers’ assertions regarding cause for dismissal. It’s a high bar to say the least. Lastly, when terminating someone’s employment in a field where they, for reasons physical, age or otherwise, are unlikely to be able to find replacement employment, the amount due on judgment will likely be higher.

If you have been wrongfully dismissed, or believe that an employee may sue you for wrongful dismissal, contact the experienced team at Devry Smith Frank LLP for advice.

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