Time theft is not a new issue in the workplace. In places with sign-in machines, a person could ask their friend to sign them in if they are running late for work. However, time theft has gained more attention recently due to the concern that employees may engage in time theft while working from home.

A decision in British Columbia, Besse v Reach CPA Inc, (2023 BCCRT 27) was made earlier this year. It addresses a claim of time theft. In that case, Karlee Besse, an accountant for Reach CPA Inc (Reach), alleged that she was wrongfully dismissed and was owed unpaid wages and severance pay. Reach filed a counterclaim and argued that they terminated Besse for cause, due to time theft. Reach claimed that they held back Besse’s paycheck to reclaim money Besse owes them for wrongfully claimed wages (time theft) and for an advance that they gave her.

Reach was able to prove that the time-tracking program, that they installed on Besse’s work laptop, did not match Besse’s timesheets. Reach specifically highlighted that Besse had 50.76 hours of claimed wages that were not accounted for by the tracking software. Besse tried to claim that she did not understand how the tracking software worked and that the software did not track the work she did on physical files. However, the tribunal member did not accept that argument. Reach showed that the tracking system recorded minimal printing, suggesting that Besse did not work on many physical files, if any. Besse was also provided with the opportunity to explain these discrepancies in an investigatory meeting, which she did not.

The tribunal member found that Besse engaged in 50.76 hours of time theft. Due to the significant amount of trust that is put into an employee while working from home, the tribunal member found that there was an irreparable breakdown of trust. Therefore, Reach had just cause to dismiss Besse, which meant that Besse could not claim severance. The tribunal member found that the 50.76 hours of unpaid wages and the advance agreement entitled Reach to withhold Besse’s final paycheck and ordered that Besse pays Reach $2,756.89 for damages and tribunal fees.

Notes and takeaways regarding the Besse v Reach CPA Inc decision

Though this case may be seen as a win for employers, I would suggest that Ontario-based employers should consider this case cautiously. It is a decision by a British Columbia tribunal; therefore, no Ontario decision maker is bound to follow it by way of precedent. Further, an Ontario employer would have more to prove in making a successful counterclaim for time theft. An Ontario employer would have to show that the employee knew about the tracking through an Employee Electronic Monitoring Policy.

A provincially regulated employer would also have a harder time proving that they do not have to pay the client anything. Though Reach was able to prove that there was just cause to terminate Besse, provincially regulated employers in Ontario must prove that the employee was “guilty of wilful misconduct, disobedience or wilful neglect of duty” (O. Reg. 288/01) to not pay the notice required under the Employment Standards Act (ESA). Wilful requires some sort of intent. In the Besse case, it is not clear if Besse intended to engage in time theft to a level that is wilful.

Employers should avoid taking legal action against employees for minor claims of time theft. Likely, Reach would not have made a counterclaim against Besse if she had not made a claim for wrongful dismissal. Lawyer fees to take the decision up to a tribunal decision could easily cost more than what Reach ended up getting in their successful counterclaim. Employers with similar minor civil claims for time theft might also find that the lawyer fees would cost more than what they could settle for or win in court.

Time theft is a crime

I want to briefly address an aspect of time theft that the Besse case does not address. Time theft is theft, and an employee can be charged under section 322 of the Criminal Code for time theft. Though I could not find a written decision on a successful criminal charge of time theft, employees have been convicted of stealing from their employers in the past.

Despite time theft being a crime, employers should approach calling the police with caution. If the employer chooses to call the police, they will need to provide the police with all the evidence, even evidence that helps the employee’s claims. Further, calling the police can not be a bargaining chip in ending the employment relationship. By not cooperating fully in a police investigation or using the option to call the police as a bargaining chip ahead of the dismissal, an employer can face a finding of malicious prosecution damages and punitive damages. The more egregious case of Pate Estate v Galway-Cavendish and Harvey (Township) (2013 ONCA 669) resulted in the employer being ordered to pay $450,000 in punitive damages after they failed to give police footage that would have exonerated their employee from criminal charges.

How Suzanne Desrosiers Professional Corporation can help

Our team at Suzanne Desrosiers Professional Corporation can help provincially and federally regulated employers address their concerns about time theft. One of our employment lawyers can speak to you on how to properly address a concern about time theft. If the evidence warrants it, we can help employers properly dismiss an employee. We can help provincially regulated employers draft a mandatory electronic monitoring policy, allowing employers to track for time theft. We can also help employers defend themselves from wrongful dismissal claims tied to time theft.

Our team at Suzanne Desrosiers Professional Corporation can also help employees on the employment law side of time theft, as we have no criminal law division. If the facts are favourable, we can help employees file a claim for wrongful dismissal after a termination due to alleged time theft.

Regardless of whether you are an employee or an employer, you can get in touch with one of our employment lawyers by calling us at (705) 268-6492 or emailing us at info@sdlawtimmins.com.