174 Davenport Road, Toronto, Ontario, M5R 1J2

Heynen v. Frito-Lay Canada Ltd.

In this matter Ken was co-counsel in a wrongful dismissal action commenced against a former employer by an employee as a result of being dismissed while being jailed for a short period of time. The Plaintiff, Corry Heynen had worked for Frito-Lay Canada since 1970 for a total of 23 years. The evidence confirmed that for a period of 22 years from 1970 to 1992 he had been an excellent employee.

In November of 1992 he was charged with two criminal offences. These were not related to his employment and were the first criminal charges he ever had. In December of the same year he pleaded guilty to those charges. On January of 25, 1993, Mr. Heynen took a leave of absence from his employment to get a surgery. His employer allowed this leave and he was scheduled to come back to work on March 8. After his surgery he recovered at home and attended his sentencing hearing on February 12, 1993. Although facing minor charges and having no previous criminal record, he was surprisingly sentenced to four months and eighteen months probation.

A week after he was jailed, Mr. Heynen realized he had to tell his employer about the recent developments. Between March 5 and April 11, 1993, his supervisor visited him in jail three occasions. On the first occasion he asked him to resign. Mr. Heynen refused. On March 8, his medical leave of absence ended. During the next two visits, Mr. Heynen discussed different options. Ultimately, he was terminated on April 1.

Mr. Heynen considered his options and in October of 1993 he applied to the Employment Standards Branch of the Ministry of Labour. An officer was assigned to the case and advised Mr. Heynen on April 14, 1994 that he was entitled to severance pay in the amount of $18,955.52. He was unhappy with this award after 23 years of loyal service and and he commenced litigation. In order to proceed with litigation, Mr. Heynen had to initially argue that the officer decision was not final.

The Ontario Court of Justice, General Division dismissed his case with the Honorable Justice MacPherson stating that the officer’s decision was in fact final and that the doctrine of issue estoppel applied to this case resulting in the dismissal of Mr. Heynen’s case:

“33 In my view, the doctrine of issue estoppel should be applied in this case. All three of the components of the doctrine — same question, final judicial decision and same parties — are present.”

Even though the case was dismissed, Justice MacPherson still commented on the issue of whether there was just cause to dismiss Mr. Heynen as follows:

“43 In my view, all of the factors enumerated by Lord Denning M.R. in this passage tell in favour of the plaintiff in the present case. Mr. Heynen had worked for Hostess for 23 years, he was an effective driver-salesman (see Mr. Henley’s letter of recommendation), when he was terminated he was only one month short of returning to work, and although it was important to get someone else to do his job in the meantime, it was also relatively easy to do so.

44 My conclusion is that, on the merits, Hostess did not have just cause to terminate Mr. Heynen on April 1, 1993.”

Although Mr. Heynen initially lost, the matter was appealed and Ken was successful in wining Mr. Heynen’s appeal at the Ontario Court of Appeal.

Mr. Heynen appealed the application of issue estoppel, while Frito-Lay Canada appealed Justice MacPherson’s finding that there was no just cause to terminate Mr. Heynen.

On the issue of estoppel, the Court of Appeal ruled ruled as follows:

“25 In summary, given the way this action has been framed by the parties, I conclude that the Employment Standards Act proceedings did not determine the same issue as that to be addressed in this litigation. This requirement of issue estoppel has not been met and the doctrine therefore does not preclude the action. The appeal on this issue must be allowed.”

The Court of Appeal also agreed with Justice MacPherson in determining that there was no just cause to dismiss Mr. Heynen:

“26 Turning to the issue raised by way of cross-appeal, MacPherson J. determined that the respondent did not have just cause to dismiss the appellant. As I have indicated I agree with this conclusion.”

The parties agreed that Mr. Heynen was to receive an additional ten and a half months pay in lieu of notice:

“33 The parties are agreed that the appropriate payment in lieu of notice is an additional 10 1 /2 months pay over and above the funds already received by the appellant as a result of the allowance of his claim for severance pay.”

Mr. Heynen’s appeal was allowed, his wrongful dismissal action succeeded, Frito-Lay Canada’s cross-appeal was dismissed. Although it took several years after his dismissal, Mr. Heynen was eventually successful in his claims against his former employer.

Even if an employee has been jailed for a short period of time, that does not mean that just cause exists for an employee’s termination. Mr. Heynen’s charges were unrelated to his employment. This case serves as a reminder that employers must carefully examine the circumstances and the law on dismissal before firing an employee.

Full citations:
Heynen v. Frito-Lay Canada Ltd., 1997 CarswellOnt 4416, [1997] O.J. No. 4569, 32 C.C.E.L. (2d) 183, 50 O.T.C. 179, 75 A.C.W.S. (3d) 299, 98 C.L.L.C. 210-003
Heynen v. Frito-Lay Canada Ltd., 1999 CarswellOnt 2929, [1999] O.J. No. 3560, 124 O.A.C. 341, 179 D.L.R. (4th) 317, 2000 C.L.L.C. 210-003, 45 O.R. (3d) 776, 46 C.C.E.L. (2d) 1, 91 A.C.W.S. (3d) 261