'It's going to be a balancing act,' says Dominique Perinchief on time theft monitoring and employees' right to disconnect
A recent grievance dismissal has shown that time theft is an issue that’s being taken seriously by courts and tribunals – and technology is only making it easier for employers to prove just cause.
The case in point was a grievance filed by the International Union of Elevator Constructors Local 130 on behalf of an elevator mechanic who had been terminated with cause for time theft; although the data to prove the time theft wasn’t conclusive, it was enough, along with other circumstantial evidence, for the arbitrator to dismiss the grievance.
“What was really interesting about this decision was the lack of direct evidence,” says Dominique Perinchief, associate employment lawyer with Cox & Palmer in Halifax.
“The courts, tribunals, and these different boards want to make it clear that although there are challenges working in these settings for employers, there's still an obligation on employees to be honest, to record the time accurately. Because when they don't do that, they're committing fraud, they're receiving a benefit from their employer for work that they didn't provide.”
QR codes track time theft
The employee, Derek Gregor, an elevator mechanic who was working on the BMO Centre expansion project in Calgary, was investigated when a foreman noticed Gregor was taking excessive breaks and leaving early, and reported him to the site supervisor.
To keep track of who was on the construction site, workers were required to scan themselves in and out at turnstiles, using QR codes on provided cards; at the request of Gregor’s foreman and manager, a report of turnstile data was produced so Gregor’s times scanned could be compared with his timesheets.
There were questions around the reliability of the turnstiles, which the union raised, and Gregor also claimed that he was never told they were to be used for timekeeping purposes. That was beside the point, arbitrator James Casey pointed out, as employers are permitted to use any tools they wish to investigate employee time theft.
“The data is consistent with the grievor choosing to take lengthy mid-morning coffee breaks for far longer than the period he was entitled to take and resulting in a significant shortfall of hours on the job,” wrote Casey.
“The employer has led evidence that leads to the reasonable inference that the grievor has regularly engaged in time abuse. This results in the evidentiary onus shifting to the union and the trievor to provide an innocent explanation.”
The union was not able to provide sufficient evidence, and although the turnstile reports weren’t perfect, the circumstantial evidence was enough for Casey to dismiss the grievance based on the balance of probabilities.
Time theft a breach of trust
The site supervisor of the project, who conducted the review of Gregor’s data, testified that elevator mechanics generally work independently, and that the industry usually responds to time theft with termination due to that high level of trust.
Gregor was terminated in person by the regional vice president of the employer, with Gregor’s manager and supervisor present.
“In a lot of regular termination cases, you're dealing with employees that are giving their evidence based on their experiences, their interpretations of certain interactions and communications,” said Perinchief.
With the ability to use data from sources such as scanning turnstiles, employers have more strength to their arguments, she adds.
“It's not one person applying their interpretation to maybe a conversation or some type of interaction, it's just hard facts.”
In one significant case from 2011, U.F.C.W., Local 401 v. Canada Safeway Ltd., an arbitrator wrote: “Everyone recoils at the thought of an industrial plant as gulag, with employees under constant surveillance. But the tradeoff for the employee's freedom to record his or her own time worked, without oppressive supervision, is that dishonest manipulation of the time recording system becomes serious misconduct.”
Monitoring employees for time theft
“Time theft cases are going to continue to be important, because of the trend that workers are on with remote work, more independent work. It's really important that employers maintain some ability to monitor their employees,” says Perinchief.
“Using different technology, different programs, different tools, they're able to prove pretty objectively that employees aren't doing what they're supposed to do, and it's not a particularly high standard.”
Due to increasing numbers of employees being entrusted to track their own time because of remote working scenarios, employers are becoming more concerned about time theft and how to prevent it, she says.
“There are a lot of employers that are learning that they do have the right to monitor their employees,” says Perinchief. “As technology and different programs and tools continue to emerge, it's something that employers will have to stay abreast of, because there are new developments all the time … they have the right to monitor their employees’ activities and ensure that they're performing the duties that they say they're doing.”
In acknowledgement that remote and hybrid work has blurred lines between employees’ work and personal lives, the federal government recently announced that part of its Budget 2024 will go towards legislation giving workers the legal right to disconnect.
This does not mean that employers need to monitor their employees less, Perinchief says, but they do need to be clear in their messaging and intent.
“There's a lot of pressure on the average Canadian right now, and I think it's going to be a balancing act,” she says. “People aren't robots, there needs to be some flexibility in how people spend their time. But at the same time, it is very important that if you're being compensated for working certain hours, or performing certain work, that you're actually doing that.”
