Several large employers, including the Ontario government and some of Canada’s largest banks, have recently required employees to return to work in office on either a full-time basis, or for at least four (4) days a week. Many other Canadian employers are similarly moving towards requiring a return to office for their workforce because of concerns that employees may not actually be working all the hours they are being paid to work – in other words, they are concerned that employees are engaged in time theft while working remotely.
While employers may suspect greater time theft as a result of remote work arrangements, time theft is something that can, and does, occur in person as well – as demonstrated by the recent Ontario decision, Abbasbayli v Fiera Foods Company, 2025 ONSC 3240 (“Abbasbayli”).
In Abbasbayli, the court upheld an employee’s dismissal for cause after their employer discovered that they had falsely recorded work hours. Although this decision did not involve a remote work arrangement, it is a positive decision for employers in that it supports that time theft can establish just cause for an employee’s dismissal.
Background
Mr. Abbasbayli had been employed by Fiera Foods Company (“Fiera”) for thirteen (13) years. He worked as a machine operator at the time of termination.
In or around March 2018, Fiera received an anonymous tip and began investigating whether Mr. Abbasbayli and another employee had engaged in time theft by punching in and out of work using each other’s time cards. These time cards were personal to each employee and were only to be used by the employee they belonged to – this was known by Fiera’s employees, including Mr. Abbasbayli.
Upon reviewing the punch-in and punch-out times recorded by the time card machine(s) and video camera footage, it was shown that Mr. Abbasbayli and the other employee had used each other’s time cards on multiple occasions.
Fiera met with Mr. Abbasbayli to discuss the situation several times following the review of the time card machine data and the video footage. Mr. Abbasbayli continued to deny any wrongdoing, refused to provide an explanation, and claimed that he was being framed.
Following the final meeting, Fiera determined that the employment relationship with Mr. Abbasbayli was beyond repair given the time theft and his dishonesty during the investigation. As such, the company terminated Mr. Abbasbayli’s employment for cause on or about March 23, 2018.
Mr. Abbasbayli subsequently brought a claim against Fiera for wrongful dismissal, also claiming that the termination was reprisal for bringing health violations to the company’s attention and for being involved in an attempt to unionize with other employees.
The Court’s Decision
The Ontario Superior Court dismissed Mr. Abbasbayli’s claim in its entirety.
The court determined that Mr. Abbasbayli’s dishonesty during the investigation and his time-theft (via the time card misconduct) went “to the heart of the employment relationship” and Fiera could not be expected to continue its employment relationship with him following such conduct. As such, the court determined there was just cause for Fiera to terminate Mr. Abbasbayli’s employment.
The court also determined that there had been no reprisal against Mr. Abbasabayli. The court found that even if Mr. Abbasbayli did have legitimate health violation concerns, he had not brought such concerns to Fiera’s attention, nor had he raised them with the food safety inspectors when they had come to visit the company. As Fiera was unaware of Mr. Abbasbayli’s health violation concerns, it could not have terminated his employment in reprisal for such.
Similarly, the court also determined that there had been no reprisal in connection to Mr. Abbasbayli’s alleged participation in a unionization attempt. The court noted that Mr. Abbasbayli provided no details or evidence that he was engaged in such unionization attempt and all Fiera employees who testified were unaware of any such involvement by Mr. Abbasbayli.
While the court dismissed all of Mr. Abbasbayli’s claims, it did assess what his reasonable notice entitlement would have been if he had been wrongfully dismissed. The court determined that he would have been entitled to ten (10) months of reasonable notice, however, that would have been reduced to five (5) months as he had fully mitigated his damages for the other five (5) months of the notice period.
Unfortunately for Mr. Abbasbayli, he did not receive any wrongful dismissal damages because the court upheld his termination for cause.
The Bottom Line
Overall, Abbasbayli is a positive decision for employers as it demonstrates that time theft can support a dismissal for cause. However, it is crucial to note that in Abbasbayli, the time theft concerns were substantiated by a solid workplace investigation into the allegations of time theft misconduct, and part of the court’s decision that the just cause termination was justified was based on the opportunities the employer provided to the employee to address the situation honestly, and the employee’s failure to do so. As such, it is a best practice for employers who are concerned about potential time theft, whether that employee works remotely or in-person, to conduct a thorough workplace investigation before making any disciplinary decisions.
The Abbasbayli case also demonstrates that the court will not accept an employee’s vague allegations of reprisal, particularly where such allegations are unsupported by the evidence provided.
If you require any assistance with respect to a workplace investigation, ending an employment relationship (with or without cause), or a wrongful dismissal claim, please do not hesitate to contact us for expert legal advice and guidance.
