Can an employee be made to repay her employer for hours for which she was paid but did no actual work?
In Besse v. Reach CPA Inc, 2023 BCCRT 27 (CanLII), the British Columbia Civil Resolution Tribunal said yes.
Facts
The applicant and respondent by counterclaim, Karlee Besse, was employed as an accountant by the respondent and applicant by counterclaim, Reach CPA Inc. from October 12, 2021 to March 29, 2022.
Around September 20, 2021, Reach and Miss Besse entered into an employment agreement under which Miss Besse would work remotely from home.
In February 2022, Miss Besse began having weekly meetings with her manager to help her better manage her files. She says she initiated the meetings because she felt unproductive and that she was not performing as well as she should have been.
On February 21, 2022, Reach installed a time-tracking program called TimeCamp on Miss Besse’s work laptop.
On March 16, 2022, the parties met to discuss some of Miss Besse’s files that Reach said were over-budget and behind schedule, and they created a performance improvement plan. After the meeting, Reach says it became concerned about a timesheet entry Miss Besse had made for a file she had not worked on. Reach says FG then analyzed Miss Besse’s TimeCamp data between February 22, 2022 and March 25, 2022 and found 50.76 unaccounted hours that Miss Besse had reported on her timesheets but did not appear to have spent on work-related tasks.
The parties met on the morning of March 29, 2022, and FG explained his analysis of Miss Besse’s timekeeping, including his concerns about the unaccounted hours. FG acknowledged Miss Besse might feel like she was on the spot and offered her time to consider the information and get back to him. Miss Besse declined that opportunity. Later that day, the parties met again and Reach terminated Ms. Besse’s employment. None of which was disputed.
Miss Besse claimed Reach terminated her employment without just cause. She claimed she was entitled to $1,371.60 for unpaid wages and $4,166.67 for 1 month’s severance pay in lieu of notice, for a total of $5,538.27.
Reach claimed it terminated Miss Besse’s employment because she engaged in "time theft." It said that because it terminated her employment for cause, Miss Besse was not entitled to severance pay. Reach denied owing Miss Besse unpaid wages and counterclaims $1,506.34 for the paid wages it says amounted to time theft.
Decision of the BC CRT
In dismissing Miss Besse’s claim for wrongful dismissal damages and allowing Reach’s claim for time theft, Tribunal Member Megan Stewart provided the following reasons for decision:
17. The test for just cause is whether an employee’s misconduct amounts to an irreparable breakdown in the employment relationship. Each case is decided on a contextual analysis of the facts to determine if dismissal is proportionate to the misconduct proven by the evidence (see McKinley v. BC Tel, 2001 SCC 38 and Steel v. Coast Capital Savings Credit Union, 2015 BCCA 127 at paragraphs 27 and 28).
18. Reach says its analysis of Miss Besse’s timesheets and TimeCamp data identified irregularities between her timesheets and the software usage logs. Reach submitted videos showing how TimeCamp tracked Miss Besse’s time and activity. It says the videos prove Miss Besse engaged in time theft by recording work time in her timesheets that was not tracked by TimeCamp.
19. In response, Miss Besse says she found TimeCamp difficult to use and she could not get the program to differentiate between time spent working and time spent on the laptop for personal use. The parties agree Miss Besse was allowed to use her work laptop for personal use during personal time.
20. The videos show where an employee opens a document or accesses a client file, TimeCamp records when and for how long they had the document open or were in the file. The videos show TimeCamp captured the detail of each of Miss Besse’s activities which Reach could then use to distinguish between work and non-work activities. For example, if Miss Besse had a streaming service like Disney Plus open, TimeCamp recorded its electronic pathway and how long the service was accessed. As this was not activity associated with client work, Reach would classify it as personal. Similarly, if she accessed a client file, used software associated with client work, or printed client documents, TimeCamp recorded those electronic pathways and the time spent on each task, and Reach classified this as work activity. Miss Besse did not dispute the video evidence or Reach’s classification of her activities.
21. Based on this evidence, I find Miss Besse did not have to take steps to get TimeCamp to differentiate between her work and personal activities once she was logged onto the program. I find TimeCamp automatically recorded activities in such a way that Reach could identify and classify them as work or non-work related. I also find the videos show that as tracked in TimeCamp, Miss Besse did not work on files she recorded time for in her timesheets, leading to the unaccounted hours. Miss Besse says she could not explain the 50.76 unaccounted hours since she did not fully understand how to use TimeCamp. I find this does not matter given TimeCamp’s automatic tracking functionality described above. I accept the 50.76 figure based on Reach’s calculation of time Miss Besse recorded in her timesheets less her work time recorded by TimeCamp.
22. Miss Besse also says she spent a significant amount of time working with paper copies of client documents that would not have been captured by TimeCamp. She says she did not tell Reach she was working in hard copy because she “knew they wouldn’t want to hear that” and she was afraid. Reach provided TimeCamp data of Miss Besse’s printing activity. It says the time Miss Besse spent printing shows she could not have printed the large volume of documents she would have needed to work on in hard copy. Reach also says even if she had been working on files in hard copy, she would have had to enter information into the software at some point, which the TimeCamp data did not indicate occurred.
23. Even if I accept Miss Besse was working in hard copy most of the time, there is no evidence she uploaded her work onto Reach’s electronic system, or otherwise demonstrated to Reach that she spent any significant amount of time performing work-related tasks in connection with the 50.76 unaccounted hours. So, I accept Reach’s explanation that Miss Besse’s printing volume did not add up and that she did not upload work she did in hard copy.
24. Overall, for the reasons above, I find TimeCamp likely accurately recorded Miss Besse’s work activity and that there were 50.76 unaccounted hours recorded on Miss Besse’s timesheets.
25. In the video recording of the parties’ morning meeting on March 29, 2022, Miss Besse appears composed, if quiet. I acknowledge the meeting was difficult for Miss Besse and that she felt “backed into a corner”. In her submissions, Miss Besse says she thought it would be easier if she just told FG what she thought he wanted to hear in the hope that he would see she was struggling and needed more support. However, I find it difficult to accept she would not have taken the time Reach offered her to reflect on the allegation raised and to give her side of the story if she thought she had done nothing wrong, even if she was afraid. Instead, when confronted with information about Reach’s timekeeping analysis, Miss Besse said “Honestly, I don't really think I need time to look at it, it's pretty… like, you can't fight the time […]” She went on to say “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 recognize that and so for that I'm really sorry […]” and repeated later “Clearly, it’s, I’ve plugged hours that I shouldn’t have plugged to files um when I wasn’t working on them and like, I can’t hide that” (reproduced as spoken).
26. For the reasons above and based on the evidence before me, I find Reach has proven Miss Besse engaged in time theft between February 22, 2022 and March 25, 2022. Time theft in the employment context is viewed as a very serious form of misconduct (see for example Retail, Wholesale Department Store Union v Yorkton Cooperative Association, 2017 SKCA 107 at paragraph 27). Given that trust and honesty are essential to an employment relationship, particularly in a remote-work environment where direct supervision is absent, I find Miss Besse’s misconduct led to an irreparable breakdown in her employment relationship with Reach and that dismissal was proportionate in the circumstances. So, I find Reach had just cause to terminate Ms. Besse’s employment.
…
28. Since I find Reach had just cause for terminating Miss Besse’s employment for time theft, it follows that it is entitled to compensation for the 50.76 unaccounted hours. Reach says Miss Besse’s annual salary during the period of the time theft was $55,000. I note the September 2021 employment agreement sets out an annual salary of $50,000. However, based on Miss Besse’s final two paystubs in evidence, I find at that time her salary was $55,000. The employment agreement indicates Miss Besse was required to work at least 2,000 hours a year, which works out to an hourly rate of $27.50. Multiplied by 50.76 hours, this amounts to $1,395.90. Reach then added $79.57 for Canadian Pension Plan contributions and $30.88 for Employment Insurance premium contributions, for a total of $1,506.34. Miss Besse did not dispute Reach’s calculation. In these circumstances, I find Reach’s calculation reasonable, and I allow its claim for $1,506.34.
Commentary
In Ontario, there has been considerable debate as of late as to whether the doctrine of just cause for dismissal is effectively impossible. And so the idea that an employer could not only win on “cause” but also be awarded a repayment of wages for time theft was rather surprising.
It is also important to highlight that this decision comes from the BC Civil Resolution Tribunal, which has a jurisdictional limit of $5,000. The persuasive value of this decision in other cases, especially those outside of BC is therefore limited.
Still, we now have a reported decision out there, available via CanLII, in which an adjudicator ordered an employee to repay her employer for “time theft.” Given employers’ concerns about what employees were actually doing at home during the pandemic, perhaps this is the start of things to come.
Takeaways for Employers
Employers would be cautioned to read too far into this case. As noted above, this is a decision of the BC Civil Resolution Tribunal, not a court. It remains suspect whether judges will follow the CRT’s lead here in ordering employees to repay their employers for “time theft.”
What is solid analysis, however, is whether the employer in this case had “cause” to terminate employment. The employer’s loss of trust in Miss Besse was warranted, as was the decision to terminate her employment for cause.
Takeaways for Employees
The takeaway for employees is that if you are going to claim that you were working, you better “have the receipts.” In this case, Miss Besse’s employer had installed some serious time tracking software that made arguments about how the employee was spending her day difficult.
While not all employers will make claim for time theft, one supposes that it is at least possible.
Contact Me
Are you an employer thinking of letting an employee go? Do you have concerns about what your employees may be doing while not being supervised? Call me. Email me. Do what works for you.
I can be reached by email at sbawden@kellysantini.com or by phone at 613.238.6321 x233.
Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. For 2.5 years he was in-house legal counsel providing employment law advice to one of Canada’s largest corporations. He is also a part-time professor at Algonquin College teaching Employment Law for Paralegals. He has previously taught Trial Advocacy for Paralegals and Small Claims Court Practice.
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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.
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