One of the most prominent workplace issues "especially during the pandemic" was how employers would manage the performance of their employees while working remotely. This issue has raised obvious challenges from both an employment and privacy perspective, as demonstrated in the recent British Columbia decision of Beese v. Reach CPA Inc. ["Reach"].
In the recent decision of Reach, the BC Civil Resolution Tribunal (the "Tribunal") dismissed an employee's claim for wrongful dismissal damages, and instead, awarded damages to the employer based on the employee's "time theft." The employer provided evidence to the Tribunal by uncovering discrepancies in the employee's timesheets and the software usage logs.
Ms. Karlee Besse (the "Applicant") was hired as an accountant by the firm, Reach CPA Inc. (the "Employer") in September 2021. The parties agreed that Ms. Besse could work from home, and that she could use her work laptop for personal use. On the Applicant's first day of work, the parties signed another agreement under which the Employer would, over time, forgive an advance it made to the employee for the purchase of home office equipment.
In February 2022, Ms. Besse began having weekly meetings with her manager to discuss her productivity and time-management issues. On February 21, 2022, the employer installed a time-tracking program called TimeCamp on the employee's work laptop.
On March 16, 2022, the employee met with her employer to discuss some of her files, and the employer implemented a performance improvement plan. After the meeting, the employer became concerned about a timesheet entry that the employee had made for a file she had not worked on. The employer then analyzed the employee's TimeCamp data between February 22, 2022 and March 25, 2022 and discovered 50.76 unaccounted hours that Ms. Besse had reported on her timesheets, but did not appear to have spent on work-related tasks.
On March 29, 2022, the employer met with Ms. Besse and gave her an opportunity to explain the discrepancy in her hours based on the TimeCamp data. She declined to provide an explanation, so later that day, the employer terminated her employment for just cause.
The Applicant filed a claim for wrongful dismissal, seeking $5,000 in unpaid wages and severance. The employer counterclaimed for approximately $1,500 for paid wages that it said amounted to time theft, as well as approximately $1,000 owed on the "advance" the employer had provided to the Applicant for her purchase of home office equipment.
The Tribunal accepted the employer's evidence and concluded that TimeCamp "likely accurately recorded Ms. Besse's work activity" and that there were 50.76 unaccounted hours recorded on her timesheets.
The Tribunal further added that time theft "in the employment context is viewed as a very serious form of misconduct "given that trust and honesty are essential to an employment relationship, particularly in a remote-work environment where direct supervision is absent." The Tribunal found that "Ms. Besse's misconduct led to an irreparable breakdown in her employment relationship with Reach and that dismissal was proportionate in the circumstances."
The Tribunal dismissed the Applicant's claim for pay in lieu of notice and unpaid wages. It ordered her to reimburse the employer for the amount outstanding under the "advance" agreement, as well as damages for time theft, plus interest and Tribunal fees, amounting to approximately $2,750.00.
The Bottom Line
In Ontario, employers that employ 25 or more employees are required to have a written policy in place on the electronic monitoring of employees, which should state whether or not the employer electronically monitors its employees. Our firm wrote a blog about Ontario's electronic monitoring policy (the "Policy") explaining what would be considered electronic monitoring, who is required to develop the Policy, and what content must be included in the Policy.
This ground-breaking decision is welcome news to employers, many of whom are concerned about employee time theft, especially in the increasingly common remote work context. While time theft is serious misconduct, it is important to ensure that electronic monitoring of employees complies with privacy and other applicable laws. It is important to note that if this case was decided in Ontario and the employer had not complied with its obligations in terms of an electronic monitoring policy, there's a realistic chance that the time theft evidence presented to the court would be viewed very differently.
This decision may also see a trend where employers may readily choose to counter-claim for payments made to employees when they can demonstrate that the time theft resulted in payment of wages which were not earned.
At Hyde HR Law, we offer expert legal advice in reviewing, revising, and drafting workplace policies, in addition to assessing effective termination strategies to reduce any future liability and litigation. Please do not hesitate to contact us.