Although Ontario is the only province with mandatory electronic monitoring requirements for employers under the Employment Standards Act (ESA), British Columbia recently had an interesting wrongful dismissal case in which employee time theft, remote work, and electronic monitoring intersected.
This January, British Columbia’s Civil Resolution Tribunal heard Besse v Reach CPA Inc., 2023 BCCRT 27.
The employee worked as an accountant with a CPA firm. She alleged that the firm terminated her without just cause, entitling her to unpaid wages, severance, and notice pay. She capped her damages at $5,000 to fall within the tribunal’s monetary jurisdiction.
Around September 20, 2021, the parties signed an employment contract under which the employee would work remotely from her home. By February 2022, there were file management issues. The employee said she initiated weekly meetings with her manager because she felt unproductive and was not performing as well as she should have been.
On February 21, 2022, the employer installed TimeCamp, a time-tracking software, on her work laptop.
On March 16, 2022, the parties met to discuss files that were over budget and behind schedule, and consequently, the parties entered into a performance improvement plan. However, the employer became concerned and initiated a review after discovering that the employee had time entries to a file she had not worked on.
TimeCamp helped the employer identify 50.76 hours that were unaccounted for over roughly one month between February and March. The employee appeared to have logged time without any accompanying work activities.
On March 29, 2022, the parties met, and the employee was allowed to further review the findings and later provide feedback. She did not. Later that day, the employer terminated her.
The tribunal explained that the test for just cause termination is whether the employee’s misconduct amounts to an irreparable breakdown in the employment relationship. That was the test this employer had to meet.
According to the employee, she found the software hard to use and could not get it to properly distinguish work versus non-work time spent on the laptop. The employer’s policy allowed non-work use of the laptop outside of work hours.
However, the employer showed the tribunal video evidence of the ease with which the software could capture the employee’s activities so the employer could distinguish between work versus non-work time without any employee intervention. For instance, the software could electronically capture when the employee opened a work file and the length of time work was done in that file. By contrast, the software would electronically record time streaming Disney Plus as non-work time.
The employee then said she spent a lot of time working on printed documents, and the software did not capture that time. Again, the employer showed how the software captured printing activity and explained that the employee’s printing volumes could not have accounted for the disputed hours. Also, the employer said at some point, she would have had to enter information on the work she had done in the software, but did not do so.
Interestingly, the employer also showed the tribunal a video recording of the parties’ March 29, 2022 meeting. Among the things the employee said at the time:
Clearly I’ve plugged time to files that I didn’t touch and that wasn’t right or appropriate in any way or fashion, and I recognise that and so for that I’m really sorry … I shouldn’t have plugged to files um when I wasn’t working on them and like, I can’t hide that
The tribunal found that, on the evidence, the employee was not credible, and there were 50.76 hours unaccounted for.
The tribunal explained that time theft was a serious form of misconduct given that trust and honesty are essential to an employment relationship, especially in a remote work environment where direct supervision is absent.
Finding that the time theft, in this case, caused an irreparable breakdown in the employment relationship, the tribunal held that the employer was right to terminate without notice or severance pay.
The employee ended up owing the employer about $2,600, for time theft and an outstanding advance. On top of that, she had to pay interest and costs.
This employer used electronic monitoring to manage its workforce, protect its assets, produce evidence of disciplinary meetings, and defend a wrongful dismissal claim. While this was not an Ontarian employer, hopefully, it had an electronic monitoring policy as a best practice.
Meeting your duty of care
Hopefully, all Ontario employers remembered to check their headcounts and other criteria as of January 1, 2023, to reconfirm compliance with the ESA requirements surrounding electronic monitoring. This year is the first review date since the new requirements took effect in 2022.
Any employer who monitors employees should have a policy in place as a best practice even if there is no legislated imperative to do so. And employers who do not believe that they monitor employees electronically should review First Reference’s policies and free whitepaper on electronic monitoring to make sure.
Implement controls over electronic monitoring of employees. Address compliance, privacy, technology, employee relations and other issues using policies in the Human Resources and Information Technology databases in First Reference’s PolicyPro.
Policies and procedures are essential, but the work required to create and maintain them can seem daunting. The Finance and Accounting, Operations and Marketing, Not-for-Profit, and Information Technology databases in PolicyPro, co-marketed by First Reference and Chartered Professional Accountants Canada (CPA Canada), contain sample policies, procedures, checklists and other tools, plus authoritative commentary to save you time and effort in establishing and updating your internal controls and policies. Not a subscriber? Request free 30–day trials of Finance and Accounting, Not-for-Profit, Operations and Marketing, and Information Technology databases in PolicyPro here.
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