An Ontario court awarded 19 months of notice for wrongful dismissal, then added 14 more months because of how the employer ran its investigation. Total: 33 months. The workplace investigation process was the liability, not the termination.
An Ontario employer fired a night shift supervisor for cause. It had a reason it believed in: another supervisor reported that he was manipulating timesheets. It ran an investigation. It interviewed him. It interviewed the workers on his shift. Then it terminated him, without notice, and put fraud and time theft in the termination letter.
The court awarded the employee 19 months of pay in lieu of notice — and then added 14 more months on top, because of how the employer got there.
Thirty-three months. Roughly three years of compensation for a single termination, and the second-largest chunk of it was not about whether the employer was right. It was about how the employer ran the process.
If you have ever authorized a for-cause termination on the strength of an internal investigation, Wilsher v. Olympic Wholesale, 2026 ONSC 3620 is the file to read before you do it again.
The plaintiff was 55 years old with 17 years of service and held the role of night shift supervisor at a wholesale operation. When he was promoted into the supervisor role eight years before his termination, he learned it by shadowing another supervisor. He received no job description, no training materials, no policies, no procedures. During that shadowing period, the other supervisor taught him how to adjust employees' hours in the company's time system.
He understood, reasonably enough, that adjusting timesheets was an ordinary part of the job.
The practice was this: warehouse night shift employees who finished their work early were allowed to go home, and supervisors "topped up" their hours to the end of the shift. The unionized employees were guaranteed 40 hours a week under their collective agreement. Topping up got them there.
Eight years later, a different supervisor reported him — alleging he was topping up hours in exchange for favours. The employer investigated.
Here is what the investigation looked like, as summarized by Osler in its August 5, 2026 analysis of the decision: the employer called the plaintiff into a room with company representatives, without notice and without telling him what the meeting was about. It questioned him about the timesheet adjustments. He explained the practice — employees skipping breaks and lunches to finish work, topped up to the guaranteed 40. The employer then interviewed labourers on his shift, brought him back into the room, told him he had admitted to fraud, and fired him.
The Record of Employment went out coded "M" — dismissal or suspension. The employer provided no references.
The court found there was no just cause, and the reasoning is worth reading slowly, because it is a catalogue of things employers do without noticing.
The topping-up practice had been in place for at least 19 years. It predated the plaintiff. He was taught it during his own onboarding by the employer's own supervisor. He was never given a job description, a manual, a memo, a policy or any training that said otherwise. Every edit he made was logged under his own passcode and employee identifier — fully transparent, never disguised. He never personally benefited from it. And the practice continued after he was gone; his replacement was eventually terminated for the same conduct.
The court concluded that the employer had knowingly tolerated, condoned and institutionalized the practice.
That matters legally, not just morally. Under the Employment Standards Act, 2000 and its termination regulation (O. Reg. 288/01), an employer avoiding statutory notice and severance must establish wilful misconduct that is not trivial and has not been condoned by the employer. Applying McKinley v. BC Tel, 2001 SCC 38, the court asked whether the dishonest conduct was proven and, if so, whether its nature and degree warranted dismissal. It failed at the first gate.
The court dismissed the claim for aggravated and punitive damages. Employers sometimes read that as a win. It was not.
Instead the court extended the notice period by 14 months for bad faith and unfair dealing in the manner of dismissal — the same money, arriving through a different door. The reasons, per the reported decision, were these:
The investigation was targeted. The employer examined the plaintiff's timesheet adjustments and no one else's, despite evidence that the practice was widespread among supervisors. It took no action against the employees who allegedly benefited. The court noted the employer's position that further investigation was not required in order to prove its case against him — which is precisely the problem. An investigation designed to confirm a conclusion is not an investigation.
The investigation was initiated by a manager who acknowledged a negative relationship with the plaintiff. No screening for bias. No consideration of who should hold the file. That single fact created the appearance that he had been singled out, and the court said so.
The interview was an interrogation. No notice. No explanation of the purpose. Conducted, in the court's words, in a high-handed, one-sided and biased manner intended to intimidate.
The termination letter accused him of fraud and theft of time — allegations the employer could not sustain.
The ROE was miscoded, restricting his access to benefits and damaging his ability to find new work. The court ordered it corrected.
Read that list again. Four of the five items are process failures. None of them required malice. Each one is the kind of thing that happens when a busy operating company runs an investigation with the people it has on hand, under time pressure, after it has already decided what it thinks happened.
1. The investigation is now a priced asset — or a priced liability. This court converted investigation quality directly into money, using a Wallace-style notice extension that departs from the Honda v. Keays approach, so watch for any appeal. Fourteen months of a 55-year-old supervisor's compensation is not a rounding error. When you weigh the cost of an independent workplace investigation against doing it internally, that is the number on the other side of the ledger.
2. Confirmation bias is the single most expensive defect. The employer here did not fabricate anything. It simply looked only where it expected to find something. Scope is a decision, and an investigator who scopes narrowly to protect a conclusion has already produced a report a court can dismantle.
3. Who investigates matters as much as how. A manager with a known negative history with the subject should never be running the file. This is not a nicety — it was cited by the court as a basis for the additional award. If you do not have someone genuinely neutral available internally, that is a structural argument for going external, not a reason to proceed anyway.
4. Procedural fairness has a floor. Notice of the meeting. Notice of the allegations. A real opportunity to respond after the evidence is gathered, not a second ambush. The plaintiff here was told he had "admitted to fraud" in a meeting he did not know was coming. That is not a response opportunity.
5. Your informal practices are your policies. Nineteen years of topping up, taught during onboarding, logged transparently, never written down anywhere. The absence of a policy did not protect the employer — it destroyed its cause case. Every workplace has practices like this. The time to find them is before you allege misconduct, not during discovery.
6. The exit paperwork is part of the conduct. A miscoded ROE and a refusal to provide references were both weighed against the employer. The termination does not end when the meeting does.
Separate the decision-maker from the investigator — permanently. The person who gathers facts should not be the person who decides discipline, and neither should be someone with a history with the subject. If your org chart makes that impossible, you have identified why external investigators exist. Our investigation fit assessment is a five-minute way to test whether a given matter should stay in-house.
Scope the investigation to the allegation, not to the person. If the allegation is that a practice was abused, the investigation has to examine the practice — including everyone else doing it. Deciding not to look is a finding, and it is the finding that cost this employer 14 months.
Write down the notice protocol and follow it every time. The subject gets advance notice of the meeting, notice of the allegations in substance, the right to a support person where applicable, and a genuine opportunity to respond to the evidence before any decision is made. Build it into your workplace investigation process and stop improvising it.
Audit for condonation before you allege cause. Ask the uncomfortable question out loud: has anyone else been doing this, and for how long, and did we know? If the honest answer is yes, cause is likely gone and you are now deciding how expensively to find that out.
Train the people who will actually do this work. Most bad investigations in Ontario are run by capable HR generalists and operations leaders who were never trained in scoping, bias screening, evidence weighing or report writing. That is a fixable gap — see our overview of workplace investigation training for Ontario employers.
Get legal advice before terminating for cause. Cause is a legal conclusion with a very high bar, and Wilsher is a reminder that a weak cause allegation plus a weak process compounds rather than adds. Employment counsel should be assessing the cause position; the process is where we work. Commentary from firms including Osler and Hicks Morley is worth having in front of your counsel on this decision.
There is a version of this case where the employer had exactly the same suspicion, ran a properly scoped investigation with a neutral investigator, discovered that topping up was a 19-year institutional practice, and dealt with it as a policy failure rather than a fraud. That employer likely never reaches a courtroom.
The version that happened cost 33 months.
The gap between those two outcomes is not legal strategy. It is process discipline — decided in the first 48 hours after an allegation lands, usually by someone who is not thinking about a courtroom at all.
Facing an allegation you are not sure you should investigate internally? Start with the investigation fit assessment, or review our Ontario employer-side workplace investigation acceptance process to understand how mandates are screened.
Need the underlying capability rather than a one-off? Policy architecture, manager training and investigation readiness sit inside our HR services work. Book a 30-minute consultation or contact us.
1205 Consulting provides HR and workplace investigation services. This article is general information, not legal advice. Court decisions are summarized from public sources and published legal commentary; read the primary decision and consult employment counsel before acting on any specific situation.
In Wilsher v. Olympic Wholesale, 2026 ONSC 3620, the Ontario Superior Court of Justice found the employer did not have just cause to terminate a night shift supervisor with 17 years of service. The court awarded 19 months of common law reasonable notice and added a further 14 months because of the employer's bad faith and unfair conduct in the manner of dismissal, for a total of 33 months. The court also ordered the employer to correct the employee's Record of Employment. Read the primary decision and consult employment counsel before applying it to any specific situation.
According to the reported decision, the court identified a targeted, one-sided investigation that examined only the plaintiff's conduct despite evidence the same practice was widespread, an interview conducted without notice that resembled an interrogation, a termination letter accusing the plaintiff of fraud and time theft, and a Record of Employment coded as dismissal or suspension that hindered his job search. The court declined to award aggravated or punitive damages but extended the notice period instead.
Yes. Wilsher illustrates that an employer may avoid aggravated and punitive damages and still face a materially longer notice period because of bad faith or unfair conduct in the manner of dismissal. Where an investigation is used to support a for-cause termination, the quality and fairness of that process becomes part of the court's assessment of the employer's conduct. This is a legal question for employment counsel on any specific file.
It can. In Wilsher the court found the practice at issue had been tolerated, condoned and institutionalized in the workplace over many years, including through the supervisor's own onboarding, and continued after his termination. Under the Employment Standards Act, 2000 and O. Reg. 288/01, wilful misconduct that has been condoned by the employer does not support the loss of statutory notice and severance. Employers should assess condonation before alleging cause.
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