When the vast majority of the Canadian workforce suddenly transitioned to working from home in 2020, managers were concerned about employee productivity. Most employees believed remote work increased productivity, while managers believed the opposite. The debate continues. Candidly, I am on the “increased productivity” side of the debate: working remotely allows me to focus without interruption and bring my full energy to my work by avoiding a soul-sucking commute. However, managers’ concerns about productivity are not always misplaced. Employees who do not put in the hours required by their contract are engaging in time theft, which is typically cause for discipline and, in particularly egregious circumstances, termination for cause.
Case Study: Time Tracking Software Reveals Time Theft
In Besse v. Reach CPA Inc, decided early this year, the British Columbia Civil Resolution Tribunal upheld an accounting firm’s for cause termination of an accountant who engaged in time theft working from home. About five months after joining the firm as a CPA-in-training, the firm installed time-tracking software on her laptop. About a month later, due to concerns about files that were over budget and behind schedule, the employee was put on a performance improvement plan. Shortly thereafter, the firm became concerned about a timesheet entry that the employee made for a file she had not worked on. The employer proceeded to analyze about a month’s worth of time-tracking software data and discovered 50.76 unaccounted hours the employee had reported on her timesheets that did not appear to have been spent on work-related tasks.
The employer held a meeting with the employee following this discovery to give her an opportunity to respond. The employee declined the opportunity and was terminated for cause later that day. She then brought a claim for wrongful dismissal to the British Columbia Civil Resolution Tribunal.
At the hearing, the employer used the software’s data to show the Tribunal that the hours logged in the employee’s timesheets could not be accounted for by the time she spent working on her computer. The employee attempted to argue that she spent significant time with paper files, but the Tribunal noted there was insufficient evidence of printing or the basic electronic work associated with each file. Finally, during the meeting, in which the employer asked the employee about the timesheet discrepancies, she admitted to improperly recording time for files she did not work on.
Time Theft is Serious Misconduct
The Tribunal found the employer had just cause to terminate. The Tribunal emphasized that time theft is serious misconduct and that trust and honesty are particularly essential to an employment relationship in a remote work environment where there is no direct supervision. Notably, the employer brought a counter-claim against the employee for time theft and was awarded $1,506.34 for the 50.76 hours that were unaccounted for, as well as a portion of the advance provided to the employee to purchase office equipment.
Key Employer Takeaways
- Time theft constitutes serious misconduct in an employment relationship.
- Investigate suspicions of time theft before making any accusations.
- In Ontario, employers with 25+ employees must have an Electronic Monitoring Policy. If time-tracking software is inconsistent with that policy, you will likely not be able to rely on the data to discipline or terminate an employee
- Collect and document evidence. The employer in this case had clear evidence of time theft, which was scrutinized by the Tribunal.
- Give the employee the opportunity to respond before disciplining or terminating for cause.
- Not every case of time theft will constitute just cause. In the case above, the employee was relatively new and the employer initially implemented a performance improvement plan to address concerns about her productivity and subsequently gathered clear evidence of substantial time logged to various files in a short period. The employee then admitted to engaging in time theft, all of which supported a just cause termination.
- Concerns about employee productivity without evidence of time theft will not be sufficient to terminate for just cause. Employers must begin addressing concerns about productivity with coaching and proceed with progressive discipline before terminating for cause.
Do you have questions about electronic monitoring, employee misconduct, discipline or terminations? We advise and represent employers and employees on a wide variety of workplace disputes. Get in touch!