Turnabout Is Fair Play

Employers and employment lawyers come to learn, pretty quickly, that the world of employment law involves lots of decisions awarding money to employees.  It almost never involves employees being ordered to pay money to their employer.

There are many reasons for this but, put simply, about 99% of laws relating to the employment relationship are there to protect the employee from the employer.  (Many employer clients have asked me, “Where are the laws to protect us?”, and my response is usually along the lines of, “Welllll… you see, it’s like this…”)

Once in a while, however, a decision pops up on our radar screen in which the employee is held accountable – financially – to the employer.  One such outcome occurred in the context of B.C.’s Civil Resolution Tribunal (CRT), involving a claim by Karlee Besse against her former employer, Reach CPA Inc.

The CRT member summarized the circumstances like this…

1. This dispute is about alleged wrongful dismissal. The applicant and respondent by counterclaim, Karlee Besse, was employed as an accountant by the respondent and applicant by counterclaim, Reach CPA Inc. (Reach), from October 12, 2021 to March 29, 2022. Miss Besse says Reach terminated her employment without just cause. She says she is 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. However, she limits her claim to $5,000, which is the Civil Resolution Tribunal’s (CRT) small claims monetary limit.

2. Reach says it terminated Miss Besse’s employment because she engaged in time theft. It says since it terminated her employment for cause, Miss Besse is not entitled to severance pay. Reach denies owing Miss Besse unpaid wages and counterclaims $1,506.34 for the paid wages it says amounted to time theft. In addition, Reach says at the time it terminated Miss Besse’s employment, she owed $2,903 as the unforgiven part of an advance Reach made when she began working. After deducting $1,806.27 from her final paycheck, Reach says Miss Besse still owes it $1,096.73 for the advance. Reach’s claims total $2,603.07.

Notably, Ms. Besse worked remotely from her home.

On the key question of whether Ms. Besse had engaged in time theft, the employer said its analysis of Miss Besse’s timesheets and its computer system (TimeCamp) data identified irregularities between her timesheets and the software usage logs.  The employer also submitted videos how the system tracked Miss Besse’s time and activity, and said the videos proved Miss Besse engaged in time theft by recording time in her timesheets that was not tracked by the system.

Ms. Besse argued that the employer’s system was difficult to use and that she could not get the system to differentiate between her time spent working and her time spent on the computer for personal reasons.  The parties agreed that she was allowed to use her work computer for personal use during personal time.

The CRT member concluded that the system automatically differentiated between Ms. Besse’s work-related usage of its computer and her personal usage.  She went on to conclude that Ms. Besse had recorded over 50 hours of time on files that the system showed she didn’t work on.

Ms. Besse also asserted that she spent a significant amount of time working with paper copies of client documents and that this was time that would not have been captured by the employer’s system.  The employer, however, produced data of her printing activity.  That data demonstrated that the time she spent printing was not sufficient to have printed the large volume of documents she would have needed to work on in hard copy.

The CRT member concluded that the employer accurately recorded Ms. Besse’s work activity and that there were 50.76 unaccounted hours recorded on her timesheets.  (Of note, Ms. Besse had, when questioned, admitted that she had “plugged hours that I shouldn’t have plugged to files… when I wasn’t working on them and… I can’t hide that”.)

The CRT member noted that time theft in the employment context is viewed as a very serious form of misconduct and, given that trust and honesty are essential to an employment relationship (particularly in a remote-work environment where direct supervision is absent), Ms. Besse’s misconduct led to an irreparable breakdown in her employment relationship.  Dismissal for just cause was proportionate in the circumstances.  She went on to order Ms. Besse to pay her former employer a total of $2,756.89. 

This decision tells me three things…

• my intuition is correct that many employees working from home aren’t always working as hard as they say,

• employers with employees working remotely need to have some system in place to measure and track actual working time, and

• objective, documented evidence continues (thankfully) to be worth more than an employee’s say-so.

Whether you share those thoughts or not, you can take some solace that employers aren’t always on the paying end of the employment relationship.

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This item is provided for general information purposes only and is not intended to be relied upon as legal advice. Informed legal advice should always be obtained about your specific circumstances.