Executive Summary: Key Legal and Evidentiary Issues

• Olympic bore the onus of proving, on a balance of probabilities, that it had just cause to terminate Willsher's employment for alleged time theft and fraud.
• Under the contextual approach from McKinley v. BC Tel, 2001 SCC 38, the court had to assess whether the alleged dishonesty gave rise to a breakdown in the employment relationship.
• Evidence from three current warehouse labourers corroborated that the "clock out/top up" practice was a long-standing institutional practice used by all Night Shift Supervisors for at least 19 years.
• Willsher made all timesheet edits transparently under his own passcode, never concealed them, and never personally benefitted from the practice.
• Reasonable notice was assessed using the Bardal factors, with an extension for bad faith and unfair dealing in the manner of dismissal per Wallace and McKinley.
• Aggravated and punitive damages were considered under Vorvis and related authorities but were not awarded.

Facts of the case

Terry Willsher (spelled "Wilsher" in the case citation) was hired by Olympic Wholesale Company Limited, a food distribution company in Ajax, Ontario, on July 24, 2006 as a warehouse labourer, working primarily on the night shift. In 2015, after nine years, he was promoted to Night Shift Supervisor. He received no job description, training manual, or written policies; his only training consisted of "shadowing" another supervisor, Dan Ellis, who showed him how to log into the time management system and change employees' hours. Willsher was given a company laptop, a passcode, and access to the time management system. Throughout his supervisory tenure, he made timesheet edits under his own login, including "topping up" employees' hours when workers skipped lunches or breaks or were allowed to leave early after all work was completed. Three current long-term labourers — David Hodgson, Stefan Rowny, and O'Neil Nelson — corroborated that this "clock out/top up" practice was common to all Night Shift Supervisors, predated Willsher's employment, and continued after his departure. On October 5, 2023, at age 55 and after 17 years of service, Willsher was summoned into a meeting with company president Dan Peroff and Operations Manager Eric Sousa following a complaint from Day Shift Supervisor Jacob Bailey, questioned about his timesheet adjustments, and terminated the same day for cause, without notice or pay in lieu of notice, by a letter citing "fraudulent activity." Notably, Bailey, who assumed Willsher's position, was himself terminated in December 2025 for engaging in the same "topping up" practice. Willsher claimed general damages of $200,000 for wrongful dismissal and $100,000 for alleged bad faith conduct, plus interest and costs.

Contractual terms and workplace practices at issue

No written employment policies governed the dispute. Willsher testified that the "topping up" practice was an unwritten one instituted to guarantee employees 40 hours of work per week in accordance with their union contract, and Peroff did not dispute that the union contract guaranteed 40 hours weekly. Peroff instead claimed an "unwritten rule" allowed employees to leave early once work was completed, with hours that week ranging between 32 and 40 — evidence the court had great difficulty accepting given his admitted lack of knowledge of night shift practices. Olympic maintained that the practice was unauthorized, against company policy, and amounted to "time theft" and "fraud," while Controller Jamie Pyefinch conceded that the expectation that everyone punch in and out was a "general understanding" at Olympic rather than a policy. The statutory backdrop was the just cause standard under the Employment Standards Act, 2000, which requires wilful misconduct, disobedience, or wilful neglect of duty that is not trivial and has not been condoned by the employer.

The court's reasoning and analysis

Justice Woodley found Willsher to be a credible witness whose testimony was fully corroborated by Hodgson, Rowny, and Nelson, all of whom testified against their own self-interest as current employees. The evidence of Peroff and Sousa was treated with care: both appeared ill-informed about night shift practices, Sousa admitted a negative relationship with Willsher, and the investigation targeted Willsher alone — no other supervisors were questioned or audited. Applying the contextual, proportionality-based approach from McKinley, the court found that "topping up" was an ingrained institutional practice applied consistently by all Night Shift Supervisors for over 19 years, that Willsher's edits were transparent and traceable to him, and that he never personally benefitted. Accordingly, the practice did not constitute a dishonest act or misconduct, and even if it were viewed as such, there was sufficient justification that Willsher did not disregard the essential conditions of his employment. The court specifically rejected the allegations that Willsher lied, attempted a cover-up, or admitted to fraud at the October 5, 2023 meeting, which was found to have been conducted in a high-handed, unfair, and unbalanced manner. The court also rejected Olympic's fiduciary duty argument, distinguishing Dunsmuir v. Royal Group, Inc., because there was no credible evidence Willsher knew the practice was a wrongdoing. On notice, applying the Bardal factors and the range surveyed in Cardenas v. Kohler Canada Co., a 55-year-old supervisor with 17 years of service (8 as a supervisor) was entitled to 19 months' pay in lieu of notice. The court then found sufficient evidence of bad faith and unfair dealing — the targeted investigation, the interrogation-style meeting, the accusatory termination letter, the ROE that prevented Willsher from obtaining unemployment benefits, and the absence of any references — to extend the notice period by a further 14 months. Aggravated and punitive damages were declined, as the conduct did not meet the thresholds set out in Vorvis and related jurisprudence.

Ruling and overall outcome

The court held that Olympic did not have just cause to terminate Willsher's employment, making Willsher the successful party. He was awarded a total notice period of 33 months (19 months' reasonable notice plus a 14-month bad faith extension), calculated on his 2023 earnings of $62,182.72 per year ($1,195.82 weekly) plus benefits valued at approximately $500 per month, together with correction of his Record of Employment and his costs, subject to any offers to settle. No exact monetary figure was fixed in the decision: the court directed counsel to determine the actual monetary amount of the award based on Willsher's 2023 earnings and benefits, with a case conference available before Justice Woodley if they cannot agree.