Background
In Wilsher v. Olympic Wholesale, 2026 ONSC 3620, the plaintiff brought an action against his former employer seeking damages for wrongful dismissal and allegations of bad faith conduct. The court awarded the plaintiff a total notice period of 33 months, nearly double the length of his employment.
The Plaintiff’s Termination for Cause
The plaintiff was first hired by the defendant company as a warehouse labourer and was later promoted to the position of night shift supervisor. As night shift supervisor, the plaintiff reported to the operations manager of the defendant company. During the course of his employment as night shift supervisor, the plaintiff made adjustments to the timesheets of several employees to “top up” employees who had worked through a lunch or break, forgotten to clock in or out or if an employee finished their shift outside the warehouse.
The operations manager received a complaint that the plaintiff was “manipulating the payroll.” Upon arriving at work one morning, the operations manager and president of the defendant company met with the plaintiff. The plaintiff was informed of the allegation that he had committed time theft in exchange for favours from certain employees.
After several other employees of the defendant company were interviewed as part of the investigation, the plaintiff again met with the operations manager and president. The plaintiff admitted to “topping up” the hours and said he understood this was allowed. The president advised the plaintiff that he had admitted to committing fraud and was in turn terminated for cause.
The Decision and Damages Awarded
The court first considered whether the facts and circumstances justified a finding that the plaintiff’s “topping up” amounted to a “dishonest act” or “misconduct” and found that they did not. The court held that “the evidence establishes that “topping up” employees’ hours was an ingrained institutional practice that existed at Olympic for a lengthy period and was applied consistently and uniformly by all night shift supervisors” (at para 108). Of note, the court accepted that the plaintiff never disguised his actions and that his credentials appeared on all timesheet edits which were available for review by the defendant company’s accounting department, operations manager and president.
The court’s analysis of the plaintiff’s notice period was relatively straightforward as the plaintiff was awarded a notice period of 19 months to reflect his age (55) and years of service (17 total with eight served as a supervisor). Regarding other damages claimed, the court did not award aggravated or punitive damages and held that an extension of the notice period was warranted instead. The plaintiff was awarded an extended notice period of a further 14 months, for a total of 33 months. The court held that the so-called Wallace bump was justified for the following reasons:
- The “investigation” targeted the plaintiff and did not “attempt to determine the nature and extent of the “topping up” practice” (at para 129).
- The defendant company did not interview any other supervisors about the “topping up” practice or review the edits of employees’ timesheets by other supervisors.
- The “interview” of the plaintiff “closely resembled an interrogation and not an investigation or interview” (at para 132). The court found that “the meeting was implemented without notice, without explanation, without due process, without representation and was conducted in a high-handed, one-sided and biased manner, intended to intimidate” the plaintiff (at para 132).
- Another supervisor, who also “topped up” employees, was only terminated on the eve of trial by the defendant company. The court found that the plaintiff’s termination was personal, directed and intended to remove Willsher from the company, not to correct or prevent the “topping up” practice from continuing” (at para 132).
- The termination letter provided to the plaintiff accused him of “fraudulent behaviour” and “theft of time.”
- The plaintiff’s coding of his Record of Employment prevented him from receiving unemployment benefits.
- The plaintiff was not provided with any references which hindered his job search and mitigation efforts.
Conclusion
The decision in Wilsher v. Olympic Wholesale, 2026 ONSC 3620 affirms that cause remains a high bar for an employer to meet and arguably invites a greater degree of scrutiny into an employer’s decision to terminate an employee for cause. Whether the Wallace bump is here to stay – and whether this decision will be appealed – is uncertain. Until then, management-side counsel can likely expect to see Wilsher cited by plaintiff-side counsel in their demand letters in support of longer notice periods.
