Time Theft, Just Cause and Electronic Monitoring Software

April 10, 2023

Busayo A. Faderin

Can I be fired for time theft? Is my employer allowed to electronically monitor me?

The quick answer to both questions is yes.

While the standard for establishing a termination for cause is high, there are circumstances in which a court will uphold such a decision by an employer to terminate an employee without notice—typically, these circumstances are when there has been dishonesty and/or serious misconduct causing an irreparable breakdown to the employment relationship.

In Besse v. Reach CPA Inc., 2023 BCCRT 27, the British Columbia Civil Resolution Tribunal held that the employee had committed time theft and accordingly, the employer’s termination with cause of the employee was proportionate in the circumstances. Not only were the employee’s claims for wrongful dismissal and unpaid wages dismissed, the employee was ordered to repay the employer for just over 50 hours that were unaccounted for in the activity recorded by the time tracking software but submitted in the timesheets by the employee. The Tribunal noted the following in coming to its decision:

1. 26. For the reasons above and based on the evidence before me, I find Reach has proven Miss Besse engaged in time theft between February 22, 2022 and March 25, 2022. Time theft in the employment context is viewed as a very serious form of misconduct (see for example Retail, Wholesale Department Store Union v Yorkton Cooperative Association, 2017 SKCA 107at paragraph 27). Given that trust and honesty are essential to an employment relationship, particularly in a remote-work environment where direct supervision is absent, I find Miss Besse’s misconduct led to an irreparable breakdown in her employment relationship with Reach and that dismissal was proportionate in the circumstances. So, I find Reach had just cause to terminate Ms. Besse’s employment.

Key Takeaways

While this was not a decision by a court, the influence of this case by the BC Civil Resolution Tribunal should not be discounted. It remains to be seen how the Ontario courts will treat such a case, especially given the higher wilful misconduct standard for terminations with cause under the Employment Standards Act, 2000 (the “Act“).

One thing for certain is the well-established legal principle to “come with clean hands”. For employees, this case serves as a caution and reminder to seek advice from an employment lawyer and to be completely forthcoming with your lawyer so they can provide you with fulsome and frank advice. It is legal for an employer to monitor your activities on company devices.

With the expansion of remote working arrangements and emergence of generative artificial intelligence (e.g. ChatGPT), more employers may decide to implement or expand the use of time tracking software and other electronic monitoring of employees. For employers using electronic monitoring software in workplaces with over 25 employees, this also serves as a reminder to ensure you have a written Electronic Monitoring Policy in place as required by section 41.1.1 of the Act.

 

---