Executive Summary: Key Legal and Evidentiary Issues

• Determined whether employee’s use of another’s timecard amounted to just cause for dismissal.

• Examined the sufficiency and fairness of the employer's internal investigation into misconduct.

• Considered allegations of reprisal due to whistleblowing and union-related activity.

• Evaluated the plaintiff’s entitlement to damages in lieu of notice and the adequacy of mitigation.

• Weighed admissibility and credibility of surveillance, timecard, and employment data evidence.

• Dismissed claims for moral and punitive damages due to lack of bad faith or high-handed conduct.

Facts of the case

Ismayil Abbasbayli, the plaintiff, worked at a large factory operated by Fiera Foods Company and its affiliates. He was terminated in 2018 after an internal investigation revealed alleged time theft involving Mr. Abbasbayli and a colleague, Mr. Hashi Yusofi. The employer claimed the two had swiped each other’s timecards to cover for absences. Mr. Abbasbayli denied this and asserted the real reason for his termination was retaliation for whistleblowing on food safety violations and supporting unionization efforts.

Fiera Foods conducted an investigation using punch clock data and surveillance footage, concluding both employees engaged in misconduct. When confronted, Mr. Abbasbayli denied wrongdoing, claimed the evidence was fake, and refused to provide an explanation. The employer terminated him for just cause, citing dishonesty and breach of trust.

Mr. Abbasbayli filed suit seeking damages for wrongful dismissal, moral and punitive damages, and an OBCA-based claim for unpaid vacation pay from company directors.

Court’s analysis and findings

The Ontario Superior Court accepted the employer’s evidence, including timecard logs and corroborated video footage. It found that Mr. Abbasbayli knowingly participated in time theft and was not honest during the investigation. Despite his long tenure and otherwise clean record, the court held that his conduct fundamentally breached the trust essential to the employment relationship, justifying dismissal for cause.

The court also examined and dismissed Mr. Abbasbayli’s reprisal claims. It found no credible evidence that he reported food safety violations to management or authorities, nor any documentation that he was actively organizing a union. Since Fiera management was unaware of such activities, termination could not have been retaliatory.

On damages, the court acknowledged that if dismissal had not been for cause, a 10-month notice period would have been appropriate given the plaintiff's tenure and role. However, it found that Mr. Abbasbayli had not sufficiently proven his loss of income. He failed to produce tax records or employment documentation, gave inconsistent testimony, and made unsubstantiated claims about blogging income. The court inferred that he mitigated part of his loss and awarded only five months’ worth of damages in the alternative.

Finally, the claims for moral and punitive damages were dismissed. The court held that Fiera conducted a fair investigation, gave the plaintiff opportunities to respond, and acted reasonably. There was no bad faith or high-handed behavior to support additional damages. The claim against the corporate directors under the OBCA was not pursued at trial and was also dismissed.

Outcome

The court dismissed Mr. Abbasbayli’s entire claim, concluding that Fiera Foods had just cause to terminate his employment. Even if that conclusion had not been reached, the plaintiff failed to establish entitlement to the damages claimed.