In O’Driscoll v Suncor Energy Inc., 2026 ABKB 43 (McGuire), the Alberta Court of King’s Bench found Suncor did not have just cause for termination of an employee they alleged had been sleeping on the job.
This case is important because it considers several employment law concepts, including just cause, reasonable notice, and what should be included in severance pay awards.
Facts
The following were some of the pertinent facts summarized by the Alberta Court of King’s Bench:
- The plaintiff employee Michael O’Driscoll worked for the employer Suncor for 11 years
- At the time of his termination of employment, he was 55 years old, employed as a Shift Supervisor. He directly supervised 25-30 employees and indirectly supervised more alongside other supervisors
- 1 year prior to termination, he was placed on a Performance Improvement Plan (“PIP”) for inconsistent work and rushing through tasks. A few months later, he went on a medical leave for 7 months due to stress. When he returned, his PIP was extended and he received a new supervisor
- There were no other concerns raised about his performance or PIP until the event resulting in his termination of employment
- After a shift in January 2021, the plaintiff employee’s supervisor noticed on a GPS log that the employee’s GPS showed his truck as having been essentially stationary for 7 hours. This caused concern that he had not been sufficiently monitoring the roads. Further review indicated another night where he had been stationary for a long period
- The next day, his supervisor interviewed the employee. The employee told him he had been parked to monitor a hydraulic shovel the previous night. He was suspended pending a formal HR investigation
- The employee’s explanation for being stationary was that he was monitoring the hydraulic shovel and handling other matters over radio including an issue related to a stuck truck
- The investigator concluded that the employee had been sleeping on the job. His employment was terminated, purportedly for just cause
- He filed a wrongful dismissal lawsuit against Suncor seeking reasonable notice and severance pay
Analysis / Conclusion
Justice McGuire found that much of the employee’s evidence about what happened that night was corroborated, and that the HR investigation was flawed. This paragraph captures most of that analysis:
[12] […] I agree there were significant problems with Jessica Polson’s investigation and with the conclusions she drew. Her evidence exhibited tunnel vision and a determination to draw inferences against Mr. O’Driscoll. For example, Ms. Polson gave evidence that in concluding that Mr. O’Driscoll was asleep for the 7 hours and 7 minutes that his truck was not moving she relied on an inference she drew from someone else’s interview of Anthony Cornish. She had the notes of Mr. Cornish’s interview that said that Cornish saw the Plaintiff around 12:00-1:00 am in the Kame pit. When asked about that information she testified: “This comment does not say that they spoke. […] And I believe it means to say he didn’t see or hear from him the rest of the night.” She ignored the notes of an interview of another supervisor, Mike Giles, which also suggested that he also had stopped and talked with the Plaintiff around 1:00 am. She completely ignored objectively reliable GPS data that showed those supervisors were together with O’Driscoll from midnight until 3:00 am. She testified that she never looked at GPS records prior to Mr. O’Driscoll’s termination, despite that it was the GPS records that initiated the concern of Mike Brown that caused the investigation to be referred to her. A further, and perhaps more obvious example of how Ms. Polson’s tunnel vision affected her conclusions was in her evidence of how she relied on hearsay information that O’Driscoll’s radio ID had not been picked up on the dispatch system the night of January 11-12 as evidence that O’Driscoll was dishonest when he claimed to have been on the radio all night. She accepted the second-hand information as reliable evidence against the Plaintiff. But she chose to disregard the very same hearsay evidence of radio communications when it was contradictory to information from Bob Cox. She found Bob Cox to be a credible interviewee despite that what Cox said was inconsistent with the conclusion O’Driscoll did not use the radio during that shift. Despite the dispatch records being a critical piece of evidence in her conclusion the Plaintiff’s version of events was untrue, she did not obtain those critical records to review as part of her investigation, and she did not ensure they were preserved for purposes of the litigation.
Justice McGuire went on to find there was no just cause for dismissal. The Court noted that Suncor had established an initial basis for suspicion, but its conclusions relied heavily on “inferences drawn from a selective view of the evidence” and it failed to preserve evidence (like certain GPS logs) that may have further corroborated the plaintiff’s story. The Court confirmed the well-established principle that the employer has the onus to establish just cause; it is not on the employee to prove there is no just cause.
The Court found the employee was entitled to 16 months’ reasonable notice (severance pay).
Suncor disputed that the severance should include overtime pay across the notice period because overtime was discretionary. The Court disagreed, inferring that if he had been given working notice he would have been eligible for overtime. As such, overtime was included.
The Court awarded the employee an AIP bonus that had not been paid yet for the year prior to dismissal, but no AIP bonus in respect of the notice period. The reasoning was that the terms of the AIP plan were clear that AIP bonuses were not paid for performance years of not-for-cause termination. The compensation summaries he received told him where to find the plan information, and Justice McGuire concluded “in that way, the limits on the program were communicated to him.”
The Court also considered a counterclaim by Suncor for repayment of a housing subsidy the plaintiff received within 24 months of dismissal. The Court found that this “was not an employment benefit in the sense of a housing allowance that would form a component of overall compensation”, and since its terms were clear that repayment was required on dismissal for amounts paid within 24 months, those amounts were required to be repaid.
My Take
This case should serve as a reminder to employers about the purpose of an investigation. The purpose is to determine objectively what happened, and then determine what to do about it. I’ve said it before but I will say it again: employers may not owe a duty of procedural fairness in these workplace investigations per se; however, failing to observe the basic principles of procedural fairness – like interviewing all relevant witnesses and considering evidence favorable to the employee – will often create the impression that the employer at issue was not trying to determine what happened, so much as to build a case for just cause dismissal.
The description of that behavior in this case was “tunnel vision”. If Suncor had observed the principles of procedural fairness and there was no further exculpatory evidence uncovered for the employee, this case may have turned out differently.
The reasoning in this case around the AIP bonus plan was surprising to me. Justice McGuire reasoned that the terms had been communicated to him because the compensation summaries referenced the plan and where he could find it. Many decisions have found circumstances like this to be insufficient for an employer to be able to rely on having communicated the terms of plans and policies, including a decision where I was successful counsel called Rice v Shell Global Solutions Canada Inc., 2019 ABQB 977 (aff’d 2021 ABCA 408).
The reasoning in this case around the housing subsidy counterclaim was also surprising to me. Justice McGuire found that the housing subsidy was only available to Suncor employees but was not a term of compensation. I do not know why this would be. There are many cases where employers have had difficulty enforcing repayment clauses for things like relocation and training costs in the face of wrongful termination.
I doubt the plaintiff would appeal this decision given his substantial success. However, if Suncor appeals it I would assume there will be a cross-appeal regarding the AIP bonus and the housing subsidy. I guess we’ll have to wait and see!
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