Five-week vacation ends with dismissal

When Ron Giancola stopped working as the manager at the Da Vinci Banquet Hall and Restaurant, there was an issue as to whether he had quit or whether he was dismissed from his employment. Mr. Giancola took the view that he was dismissed and brought an action against Da Vinci’s for wrongful dismissal.

In defending against the wrongful dismissal action, Da Vinci argued that Mr. Giancola quit, or alternatively that Mr. Giancola’s employment was terminated for cause.

The termination of Mr. Giancola’s employment with Da Vinci (whoever initiated it) was the culmination of events that began in the summer of 1998. During that time Mr. Giancola took a five-week vacation. He purchased the tickets for his vacation on the day he left and informed Da Vinci’s of his plans approximately one hour before his departure.

Mr. Giancola was of the view that, although he did not specifically tell Da Vinci’s of his vacation plans in advance, they should have know for a number of reasons. For instance, he had to cancel the same trip in 1997 due to the death of a relative. He had young children in school and therefore summer was the logical time for him to take a vacation. In conversation his son told his supervisor, Mr. DeLuca, that he would not be playing soccer that summer because his family was going to Italy. Mr. Giancola also received phone calls at the office from a travel agent who was also a friend of Mr. DeLuca. Mr. DeLuca was aware of these phone calls and would have overheard them.

Upon his return from Italy, Mr. Giancola returned to work on Sept. 5, 1998. On that day he was told by Mr. DeLuca that they had functioned without him in his absence, and therefore his employment was terminated. In spite of this conversation, Mr. Giancola went to work on Sept. 8. He asked for his pay and was informed that he would not be paid for the time he was on vacation. He resumed his regular work duties at that time.

On Sept. 11, 1998, Mr. Giancola was called to a meeting with Mr. DeLuca. At that meeting he was given an unsigned letter of termination which left blank his termination date and the amount of lump sum payment he could elect to receive. Mr. DeLuca testified that the reason for the blanks was to allow Mr. Giancola to negotiate terms that were acceptable to him. Mr. Giancola took the letter but did nothing because, in his view, the letter was unsigned so there was no point in doing anything.

Mr. Giancola continued to work as usual. After some time had passed, Mr. DeLuca followed up on the proposal. Mr. Giancola informed them that he would not act on the letter as it was unsigned. So on Oct. 9, 1998, Mr. DeLuca gave Mr. Giancola a signed version of the letter with the blanks filled in. The letter indicated that his employment was being terminated effective Sept. 14, 1998, because of a restructuring of the business. Mr. Giancola was given two options for severance: either working notice or a lump sum payment. Mr. Giancola did not accept either option proposed by Da Vinci’s and subsequently brought his action for wrongful dismissal.

In support of Da Vinci’s position that Mr. Giancola quit his employment, Mr. DeLuca testified that when Mr. Giancola advised him of his vacation plans, he told Mr. Giancola to, “Stay in Italy. If you go, you’re not coming back.” Mr. DeLuca’s secretary testified that this statement was made to Mr. Giancola. She also testified that while he was away, Mr. Giancola telephoned her to ask if it was true that he no longer had a job at Da Vinci’s to which she advised him to speak to Mr. DeLuca directly.

In its decision, the Court held that Mr. Giancola did not quit. There was no evidence that Mr. Giancola intended to sever his employment relationship by taking his vacation. When he left, he stated that he was going because he felt he was entitled to a vacation, not because he intended to leave his employment. Upon his return, he immediately reported back to work. For these reasons, the Court was of the view that Mr. Giancola did not quit.

The Court then went on to consider whether Da Vinci’s had just cause for terminating Mr. Giancola. The Court took into consideration the fact that Mr. Giancola’s job was a responsible one. He supervised a staff of 100 people. Along with Mr. DeLuca he managed Da Vinci’s operations. When he left, he had not arranged for anyone to replace him. He merely assumed that Mr. DeLuca would cover for him, not bothering to inquire whether Mr. DeLuca had any plans for holidays during that time, which he did.

The Court held that Da Vinci’s had just cause to terminate Mr. Giancola. His duties at Da Vinci’s were such that it was incompatible with these duties that he would simply leave for five-weeks on effectively no notice and without organizing a replacement. Having decided that Mr. Giancola was terminated for cause, the Court set the termination date as Oct. 9, 1998.

For more information:

Giancola v. Jo-Del Investments Ltd., Ontario Superior Court of Justice, Docket No. 99-CV-166089, Oct. 22/01.

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