( Disponible en anglais seulement )
Giovanni Strizzi (“Strizzi”) was a General Manager at a health club called Curzons Carlingwood Club in Ottawa (“Club”). David Thomas (“Thomas”) and John Cardillo (“Cardillo”) were partners in the operations of various health clubs in the Toronto and St. Catharines area in addition to the club in Ottawa (collectively referred to as the “Company”). During the relevant time period, Cardillo had responsibility for the Club in Ottawa. Strizzi had a good working relationship with Thomas, but found Cardillo much more difficult to work with.
By 2003, the Club had begun to show its age and required a number of upgrades to its equipment and facilities. New accounting software had resulted in numerous billing problems and complaints from members, as well as late payment of compensation to staff. While revenues were healthy, costs had increased, which accordingly affected the Club’s bottom line.
Three Incidents Which Lead to Constructive Dismissal
The first of three incidents which culminated in Strizzi’s constructive dismissal happened in March 2003, when Strizzi returned from approved vacation. Strizzi learned that his sister-in-law had been diagnosed with MS, and so he went to visit her on his first night back. That evening, Cardillo attempted to call Strizzi at the Club and became enraged when he could not reach him there. Later that evening, Cardillo reached Strizzi by telephone at home and launched into a tirade, insulting Strizzi, calling him names, and telling him that it was irresponsible for him not to be at the Club that evening after having been away on vacation. Both Strizzi and his wife were in tears as a result of the humiliating telephone call from Cardillo.
The second incident occurred in August/September, 2003. Strizzi had been on an approved vacation for the last two weeks in August. On the Thursday prior to the Labour Day long weekend, Head Office for the Company faxed Strizzi notice of the monthly meeting scheduled for the following Tuesday at 8:00 a.m. While attendance at monthly meetings in Toronto was mandatory for General Managers such as Strizzi, it was Strizzi’s practice to wait until he was absolutely sure that a monthly meeting would be occurring before booking his flights to avoid to cancellations if the meeting was changed, which was known to occur from time to time. When Strizzi returned from holiday on the following Monday, he immediately booked a flight to Toronto for the meeting to be held the next day. When Strizzi arrived at Head Office the following day, he discovered that the meeting had been cancelled. When he spoke to Cardillo, Cardillo expressed his anger with Strizzi for wasting Company time and money travelling to Toronto for no reason. However, the memo notifying that the meeting was cancelled was not sent out until after the scheduled meeting.
The third incident occurred on September 30, 2003 following the recent resignation of the Club’s Health Centre Manager, whose resignation letter praised Strizzi as a manager and credited unresolved problems with Head Office as the reason for his resignation. The next monthly meeting was scheduled for October 1, 2003 in Toronto. On September, 30, 2003, Strizzi attempted to book a flight to Toronto for the following day. Due to the Tango airline bankruptcy just a few days earlier, the cost of an Air Canada flight to Toronto was $900. This caused Strizzi some concern so he decided to call Cardillo. This conversation was the critical factor in the determination of whether there was a constructive dismissal as alleged by Strizzi or a resignation as alleged by Cardillo.
The conversation began with Strizzi saying that he had not booked a flight yet and that he thought it might be better if he stayed in Ottawa for a variety of reasons. Cardillo responded angrily that Strizzi should have purchased his ticket before then and that he expected Strizzi to get to Toronto for the meeting in whatever way he could at his own expense. The conversation deteriorated from there, with Cardillo accusing Strizzi of trying to destroy the Club and blaming him for the resignation of the Health Centre Manager and the poor financial performance of the Club. Cardillo threatened to get lawyers involved and said that he would hold Strizzi responsible if he caused Cardillo to lose business. The trial judge found that Cardillo called Strizzi “every name in the book.” This resulted in Strizzi saying that he could no longer work for Cardillo. Not surprisingly, this further enraged Cardillo. Strizzi told Cardillo that he felt Cardillo was basically firing him, to which Cardillo responded that he considered Strizzi to have resigned.
Resignation vs. Constructive Dismissal
The trial judge found that Strizzi was a loyal, hard-working and committed employee of the Club. In addition, the trial judge found that Strizzi had no intention of tendering his resignation given the fact that he had just bought a new home, his wife was pregnant, he had just leased a new vehicle and had no other job prospects in the works.
In Shah v. Xerox Canada Ltd., Justice Cullity laid out the test for this kind of constructive dismissal as follows: “the test, I believe, is objective: it is where the conduct of the manager was such that a reasonable person in the circumstances should not be expected to persevere in the employment.” Applying this test to the case at hand, the Court found that Cardillo’s behaviour amounted to constructive dismissal since his comments made it clear to Strizzi that his continued employment was intolerable in an environment where his employer yelled at him, called him names, falsely accused him of ruining his business, refused to engage in reasonable, civil conversation, told him repeatedly how useless he was, made threats, and generally treated Strizzi in a way in which no employee should be subjected.
This case is a useful reminder to employers that, while disagreements and difficult, even heated exchanges, may be common and expected aspects of employment relationships, employers do not have the right to harass, humiliate, belittle or berate employees. If they do, the courts will be sympathetic to any employee claiming damages for wrongful dismissal having reasonably concluded that his/her continued employment had become intolerable.
Citation: Strizzi v. Curzons Management Associates Inc., 2011 ONSC 4292 (Ont. S.C.J.).