Many employers may have learned in the news about a recent case from the British Columbia Civil Resolution Tribunal (“CRT”) involving an employee who was ordered to repay wages to her employer on account of time theft. Before employers try relying on this decision when they suspect a time theft issue, the specific issues and limitations of the case must be carefully considered.
Besse v. CPA Inc., 2023 BCCRT 27
The applicant, Ms. Besse, was employed by the respondent as an accountant for just over five (5) months. She worked exclusively from home and a few months into her employment, her employer installed a time-tracking program on her laptop. Using the software, the employer concluded that the employee had logged 50.76 hours of work on her timesheets that had not been spent on actual working tasks. When the employer met with Ms. Besse to discuss their concerns, they gave her time to consider her response so she did not feel ambushed, but she declined the opportunity to do so and could not explain the discrepancy. The employer then terminated her for cause.
Ms. Besse filed a claim alleging that the employer did not have cause to terminate her. The employer, in response, counterclaimed against her for $1,506.34 in wages that it claimed she had been paid for time not spent working. It is important to note that as an accountant, Ms. Besse was exempt from the provisions of B.C.’s Employment Standards Act and the claim was brought as a breach of contract issue.
Before the CRT, Ms. Besse stated that she found the time tracking software difficult to use and she could not get the program to differentiate between time spent working and time spent on personal matters. Based on a review of videos demonstrating how the software worked, the CRT rejected Ms. Besse’s evidence and concluded that she did not need to take steps to get the software to differentiate between her work and personal activities once she logged onto the program. The CRT also rejected her argument that she spent significant amounts of time working on hard copies, because she would need to enter her work online, which would be captured by the software.
The CRT concluded that the software accurately recorded her work activity and there were 50.76 unaccounted hours recorded in Ms. Besse’s timesheets. The Tribunal agreed with the employer that the time theft amounted to just cause for dismissal. The Tribunal further allowed the counterclaim for the wages that the employer claimed amounts to time theft.
Though this case has been highly publicized, it’s important to recognize its limitations as a precedent. Most importantly, this is a decision out of British Columbia’s Civil Resolution Tribunal, so it is not binding on courts or labour boards. Courts and employment adjudicators would generally conduct a much more thorough evaluation of the employee’s prior service, whether they were subject to progressive discipline, whether they were aware of the surveillance, and whether the employer had clear policies about hours of work, to name a few considerations.
If an employee suspects that an employee may be engaging in time theft, they are encouraged to conduct a thorough investigation into the concerns. If the company is Ontario-based and uses electronic monitoring software, remember that you may need to disclose it in an electronic monitoring policy. Consideration should also be given to any applicable privacy legislation.
The lawyers at Heeney Vokey LLP would be happy to help with the above.