A recent decision from western Canada gives employers confidence
that circumstantial evidence can be relied on to justify the
termination of an employee for time theft. The decision also
provides support for categorizing time theft as theft in the
ordinary sense of the word, for disciplinary purposes.
Time theft is generally understood as the falsification of
employee time records which allow employees to be paid for work
they did not perform. Employers have had increasing concerns about
time theft as more positions become remotely based and methods of
supervising employees change.
Background
In Fujitec Canada Inc. v The International Union of Elevator
Constructors, Local 130 Calgary, Alberta, 2024 CanLII
4119 (AB GAA), the employer was in the business of constructing,
maintaining and modernizing elevators, escalators and moving
sidewalks. Employees of the business were represented by the
International Union of Elevator Constructors, local 130
Calgary.
The grievor at issue was an elevator mechanic working on an
elevator construction project at a local bank. The grievor
submitted time sheets to his employer representing that he had been
working through most of his breaks, allowing him to leave work
early and still be paid for eight hours.
The grievor’s regular workday was 8.5 hours, which included
two unpaid 15-minute breaks and one unpaid 30 minute lunch break.
The employer permitted employees to work through their breaks and
leave early, so long as they actually worked the number of hours
they were expected to. During the relevant period, the grievor
claimed to have worked at least 8 hours of paid time per shift.
The employer suspected the grievor of falsifying his time sheets
and terminated his employment in December 2022. The union grieved
his termination and claimed he was terminated without just cause.
In the alternative, the union claimed that if it was appropriate to
discipline the employee, the penalty of termination was too severe.
The union sought compensation for lost wages and benefits for the
period the grievor was unemployed. The grievor secured other
employment approximately 10 weeks after being terminated so the
union did not seek his reinstatement.
Decision
Adjudicator Casey considered three questions, commonly referred
to as the William Scott test for Discipline and Discharge,
to determine whether discharge was an appropriate response to the
grievor’s conduct. The test includes the following
questions:
1. Has the employee given just and reasonable cause for some
form of discipline by the employer?
2. If so, was the employer’s decision to dismiss the employee
an excessive response in all of the circumstances of the
case?
3. If the arbitrator does consider discharge excessive, what
alternative measure should be substituted as just and
equitable?
Adjudicator Casey noted that time theft was a serious industrial
offence which can justify termination, even for long-service
employees. Arbitrators and the courts have been inclined to treat
time theft seriously because it is a form of fraud that permits an
employee to be paid for work they did not perform. It undermines
the trust that is fundamental in time recording systems.
The employer’s case against the grievor was based on
circumstantial evidence. Electronic gates, referred to as
turnstiles, were installed at the bank to control access to the
project site. It required authorized personnel to swipe access
cards to enter or exit the site. This system stored the name of the
individual, their company and the time they entered and exited.
The foreman of the project told a project supervisor that he had
concerns about the grievor’s hours of work. The project
supervisor reviewed a report from the turnstiles, which indicated
that the grievor was leaving the project site throughout the day
and leaving early. It appeared that he was not working through his
breaks as he claimed on his time sheets.
During the period of October 17, 2021, to November 17, 2021, the
grievor left the project site at least once during each of his
shifts. These absences varied from eight minutes to over an hour.
During the same period, he consistently left work early or claimed
overtime that did not correspond to the turnstiles’
reports.
The union claimed that the data collected by the turnstiles was
not reliable. They argued that the grievor’s work assignment
required him to exit and re-enter the work site. They also took the
position that the grievor was unfairly disciplined, given that
other employees showed discrepancies in their time sheets and site
access, but only the grievor faced termination.
The grievor claimed that he left the project site at times to
unload trucks or to discuss project related questions with
contractors from another company that were based outside of the
turnstiles.
Arbitrator Casey found that the various witnesses, including the
grievor himself, had established that there were few work-related
tasks that would require him to enter and exit the project site as
often as he had.
The turnstiles data was considered accurate. There was evidence
that one of the turnstiles was experiencing problems. However, this
unit was repaired two days into the relevant period and the grievor
claimed that he usually used a different unit when entering and
exiting the site.
Arbitrator Casey found that the grievor regularly took lengthy
breaks during his shift and worked significantly less time than he
claimed to have worked. Termination was considered appropriate
since the conduct appeared to be pre-meditated and intentional.
Trust is an important aspect of an elevator mechanics’ job
because they self-monitor their work and self-report their hours.
In this case, the employer had a policy that theft warranted
termination. Time theft was considered to fall within the
definition of “theft” in the policy. As such, time theft
caused a breakdown of the employment relationship and the
grievor’s termination was justified.
Arbitrator Casey did not have enough evidence to determine
whether the grievor was discriminated against, as the union
claimed.
Takeaways
Time theft can be correctly categorized as “theft”
according to the ordinary use of the word. As such, workplace
policies on theft and the discipline it attracts, can be applied to
time theft committed by employees.
An employer does not need to show direct evidence to prove that
an employee has committed time theft. Circumstantial evidence that
shows time theft likely occurred, is enough to justify
discipline.
When disciplining an employee for time theft, the penalties
imposed can vary in severity. Serious penalties, including
termination, are appropriate for workers who perform their duties
independently with little supervision. Trust is an essential
element in these types of employer-employee relationships and must
be protected.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
#Time #Theft #Theft #Employment #Litigation #Tribunals
