Termination For Cause In Ontario: Lessons From Wilsher v Olympic Wholesale On Misconduct And Unwritten Workplace Practices

Terminating an employee for cause is one of the most serious disciplinary steps employers can take against an employee.

Accordingly, if an employer is going to rely on a termination for cause, it must ensure that it is acting consistently and in accordance with its policies and practices, before disciplining an individual employee. If a court finds that alleged misconduct stems from a longstanding and accepted workplace practice by an employer, an unsuccessful cause allegation can expose employers to significant liability.

In Wilsher v Olympic Wholesale Company Limited, 2026 ONSC 3620 (“Wilsher”), the Ontario Superior Court of Justice (“ONSC”) rejected an employer’s allegation of “time theft” and ultimately awarded a dismissed supervisor an additional 14 months of compensation on top of their 19-month notice period following termination.¹ The decision underscores the risks employers face when workplace expectations are informal, undocumented, or inconsistently enforced.

The Alleged Misconduct: “Time Theft” and Timesheet Adjustments

Terry Wilsher worked for Olympic Wholesale Company Limited (“Olympic”), a food distribution company in Ajax, Ontario, for more than 17 years.² He spent the last eight years of his employment as a Night Shift Supervisor.³

In October 2023, Olympic terminated Mr. Wilsher for cause after an internal investigation revealed he had engaged in “fraudulent activity” by editing employee timesheets and increasing employee hours.⁴

The alleged misconduct centred on a practice known within the warehouse as “topping up.” According to Mr. Wilsher, supervisors would occasionally allow employees to leave early once all work for the shift had been completed and would then adjust their timesheets to reflect the remainder of the scheduled shift. He maintained that this was a longstanding and accepted practice that predated his promotion to supervisor and continued beyond his dismissal.⁵

Olympic disagreed. The company conducted an investigation in which it interviewed Mr. Wilsher and other employees. Mr. Wilsher was called back for a follow-up interview the same day and was told he was being terminated immediately. Olympic characterized the conduct as unauthorized payroll manipulation and argued that it amounted to fraud warranting immediate dismissal for cause.⁶ Olympic provided Mr. Wilsher with a termination letter and Record of Employment (“ROE”) alleging Mr. Wilsher was “dismissed/suspended” for “fraudulent behaviour” and “time theft”.

Why Did the Court Find There Was No Just Cause for Dismissal?

Justice Woodley of the ONSC emphasized that allegations of employee dishonesty must be assessed in their full context. Citing the Supreme Court of Canada’s decision in McKinley v BC Tel, 2001 SCC 38, Woodley J. reiterated that the issue was not simply whether timesheets were edited, but whether the conduct was sufficiently dishonest and serious to undermine the employment relationship.⁷

In assessing whether there was “just cause” for termination, the Court applied the standard under the Employment Standards Act, 2000, S.O. 2000, c. 41 (the “ESA”), which requires “wilful misconduct, disobedience, or wilful neglect that is neither trivial nor condoned by the employer.”⁸

In addition to testimony that supervisors had engaged in the same “clock out/top up” practice for many years, the Court identified several factors that undermined Olympic’s characterization of the conduct as fraudulent:⁹

• Wilsher received no personal benefit from the timesheet adjustment;
• He never attempted to conceal the edits;
• All adjustments were made using his own login credentials;
• He had not been provided with written policies prohibiting the practice; and
• He had received no formal training, job description, or written guidance regarding timesheet management.

After reviewing the evidence, the Court ruled Mr. Wilsher did not breach the level of wilful misconduct or dishonesty necessary to justify termination for cause under the ESA.

Why Does Procedural Fairness Matter in Ontario Workplace Investigations?

The decision highlights that the fairness of an employer’s investigative procedures can be critical when allegations of dishonesty may lead to termination. Employers should provide employees with a meaningful opportunity to explain their conduct, rather than approaching the investigation as a one-sided “interrogation.”¹⁰ Employers should also be mindful of who is conducting the investigation for the company and whether the investigators possess the skillset to conduct an honest and fair investigation.

These considerations become particularly important where an employer’s allegations may affect an employee’s future employment prospects.

Employer Liability for Wrongful Termination and Failed Cause Allegations

The unfair investigation practices, coupled with Olympic’s harsh accusations on Mr. Wilsher’s ROE”, contributed to the consequences imposed on the employer.¹¹ The result was significant: a 14-month extension to Mr. Wilsher’s 19-month notice period, bringing the total compensation to 33 months—approximately $187,000 in salary and benefits alone, before interest and legal costs.¹² The Court also ordered that Mr. Wilsher’s ROE be amended to remove references indicating that his employment ended because of a dismissal or suspension.¹³

While the Court in Wilsher awarded Mr. Wilsher a significant increase to his notice period, an employer may be liable for aggravated or punitive damages in addition to the notice period.

What should Ontario employers take away from this decision?

1. Ensure disciplinary actions and policies are applied consistently. While every workplace is different, Wilsher demonstrates the risks that can arise when informal workplace practices are allowed to develop without clear oversight. Employers should proceed cautiously when terminating an employee for cause for misconduct, where such misconduct has been condoned. The Wilsher decision serves as a reminder that policies, training, and consistent enforcement practices may be scrutinized just as closely as the underlying employee misconduct itself.
2. Maintain clarity and procedural fairness during the investigation process.
   Where concerns about employee misconduct arise, employers should ensure that workplace rules are clear, employees understand them, and investigations are comprehensive, fair, and transparent.
3. Ensure proportionality of disciplinary measures.
   Any disciplinary response should then be assessed in light of the full circumstances and be proportionate to the misconduct at hand.

The author would like to thank Derren Forman, Summer Student-at-Law, for his assistance with this article.

Footnotes

1 Wilsher v Olympic Wholesale Company Limited, 2026 ONSC 3620.

2 Ibid at paras 5 and 9.

3 Ibid at para 18.

4 Ibid at para 55.

5 Ibid at para 103.

6 Ibid at paras 74 and 75.

7 Ibid at paras 95 and 96.

8 Ibid at para 94.

9 Ibid at para 107.

10 Ibid at para 129.

11 Ibid.

12 Ibid at paras 65 and 130.

13 Ibid at para 140.