With work from home and remote work arrangements rise in popularity, employers are trying new ways to maintain and monitor employee’s work performance. The decision in Besse v Reach CPA Inc [Besse] out of British Columbia’s Civil Resolution Tribunal (the “CRT”), demonstrates how one employer managed to crack down on one employee’s “time theft”.
“Time theft” is a broad term referring to an employee taking credit, and wages, for work time they did not do. It can include taking long breaks, logging off early, unauthorized personal time, and non-work related internet use. This case out of BC revolved around a more blatant type of theft—timesheet fraud.
In Besse, the employer successfully terminated the employee’s employment for just cause due to her well-documented time theft. The CRT’s decision in this case highlights some key takeaways for employers to protect themselves when managing performance remotely.
The former employee was hired by Reach CPA Inc. as an accountant on October 12, 2021. The employment terms included that the former employee would work remotely from home and that she could use the work laptop provided for personal use.
In February 2022, the employee requested weekly meetings with her manager to help support her on her self-identified work productivity issues. This led to the employer installing the time-tracking program, TimeCamp, on her work laptop on February 21, 2022.
In March 2022, the employer reviewed the former employee’s timesheets and TimeCamp data and found 50.76 unaccounted hours that she reported on her timesheets but did not appear to have spent on work related tasks.
The employer met with the employee on March 29, 2022 and provided her with an opportunity to explain the discrepancy. The employee admitted to “[plugging] time to files that [she] didn’t touch” and declined to take further time to respond. The employer terminated her employment for just cause later that day.
Position of the Parties
The former employee brought an claim before the CRT for one month’s severance and unpaid wages for a total of $5000 (adjusted to meet the maximum requirements of the CRT’s jurisdiction). The employer filed a counterclaim for $2,603.07 they said the former employee owed due to her time theft and an upfront loan for her work from home equipment.
The employee argued that TimeCamp was difficult to use and that she could not figure out how to differentiate between personal and work time. The employee also argued that she spent time on hard copies of files which would not have been captured by TimeCamp.
The employer provided video evidence demonstrating how TimeCamp automatically records activities as work or personal use without user input. Evidence was presented that showed TimeCamp’s ability to track printing activity and the former employee’s printing activity did not match her claim she worked on hard copy files. The employer also submitted evidence that the employee did not upload the work product to their electronic system.
The CRT accepted employer’s evidence—the TimeCamp data and lack of work product uploaded to employer’s electronic system. The decision maker found the former employee’s admission, which was recorded, in her meeting on March 29, 2022 to be important.
As a result, the CRT found that the employee engaged in time theft which amounted to serious misconduct, and that dismissal for cause was justified in the circumstances given the impact of her actions on the trust necessary to maintain an employment relationship, particularly in a work from home environment.
The applicant’s claim was dismissed and employer was awarded its claimed damages.
Takeaways for Employers
This is a case is a great example of an employer meeting their legal obligations to prove a misconduct. The employer provided the employee with an opportunity to explain the information before dismissal, had reliable documentation of the misconduct, and retrieved through likely lawful means.
Given the prevalence of remote work, employers are concerned about employee’s effectiveness, work performance, and maintaining a positive and trusting workplace. what can employers take away from this case if they should find themselves in a similar situation?
Providing reasonable opportunity
The employer in this case provided the employee with an opportunity to address the time theft concerns. During the meeting when the employee was confronted with the time discrepancy, The employer acknowledged that she may feel put on the spot and offered her time to consider the information. Although the employee in this case declined the employer’s offer to take time to respond to the allegations at their meeting, it is important to provide employees with reasonable time to respond to concerns of serious misconduct, like time theft.
In the meeting where the employer addressed their time theft concerns with the employee, she acknowledged her misconduct but in her CRT claim, she claimed to be backed into a corner. The employer here had sufficient documentation of the meeting including providing the employee with an opportunity to respond to their concerns. This is an example of good practice by sufficiently documenting of the steps taken when presenting any allegation to an employee and providing the employee time to consider the allegations.
British Columbia has specific privacy legislation which limits employer’s abilities to collect data from employees without providing notice, obtaining consent or implementing policies. In order to install the time tracking program, the employer must have followed that legislation prior to installing. in Ontario, the new Electronic Monitoring Policy (“EMP”) requires employers with 25 employees or more to draft a policy detailing their EMP (see our previous blog on Bill 88). This does not go as far as provincial legislation and regulation. However, EMP’s require employers to provide notice of any electronic monitoring it conducts and how it does so. There are common law remedies for individuals who feel an unjustifiable invasion of privacy.
It is important to consider the organization’s policies and balance any employee management priorities with individual privacy interests prior to implementing tracking software.
Time theft is not novel
This decision demonstrates how time theft is an accepted reason for termination for cause. Whether it be extended breaks, personal internet use during work hours, or intentionally logging time for work not completed; time theft amounts to willful misconduct.
The employer here successfully proved that time was logged for work not completed. The software was installed as a measure to support the employee on her work productivity but ended up being able to confirm her misconduct. Keeping in mind the applicable privacy laws and policies requiring employees be notified of any tracking software, time tracking software is not meant to catch employees in the act but to ensure productivity in our ever-growing remote work world.