Remote Work and the Element of Trust – Employee Ordered to Pay Back Employer for Time Theft
On January 11, 2023, the Civil Resolution Tribunal ("CRT") issued the decision of Besse v. Reach CPA Inc., 2023 BCCRT 27. This decision concerned a claim for wrongful dismissal and unpaid wages, and a counterclaim for "time theft". The plaintiff, Karlee Besse, was employed as an accountant by the respondent, Reach CPA Inc. ("Reach") from October 12, 2021 to March 29, 2022. Ms. Besse was permitted to work remotely from home.
Reach terminated Ms. Besse's employment on March 29, 2022. Ms. Besse asserted Reach terminated her employment without just cause and she was entitled to $4,166.67 as one month's severance pay in lieu of notice. By contrast, Reach said it terminated Ms. Besse's employment for cause as she engaged in time theft and was therefore not entitled to reasonable notice. Reach counterclaimed in the amount of $1,506.34 for the paid wages it said amounted to time theft.
On February 21, 2022, Reach installed a time-tracking program on Ms. Besse's work laptop called TimeCamp, which recorded when and for how long Ms. Besse was in a file or had a document open. "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." TimeCamp’s recordings allowed Reach to identify and classify Ms. Besse’s activities as work or non-work related.
In between February 22, 2022 to March 25, 2022, TimeCamp had recorded 50.76 unaccounted hours that Ms. Besse had reported on her timesheets but did not appear to have spent on work-related tasks. Ms. Besse could not explain the 50.76 unaccounted hours, and the CRT accepted this figure based on Reach's calculation of time that Ms. Besse had recorded in her timesheets less her work time recorded by TimeCamp.
Ms. Besse said she had also spent significant time working with hard copy paper documents that would not have been captured by TimeCamp. However, Reach provided TimeCamp data of Ms. Besse's printing activity and asserted that even if she had been working on files in hard copy, she would have had to enter information into the software. The CRT found that Ms. Besse's printing volume did not add up and that she did not upload work she did in hard copy.
Based on the foregoing, the CRT found Ms. Besse engaged in time theft. The CRT explained time theft in the employment context is viewed as a very serious form of misconduct, citing Retail, Wholesale Department Store Union v Yorkton Cooperative Association, 2017 SKCA 107 at paragraph 27. In Ms. Besse's circumstances, her misconduct led to an irreparable breakdown in her employment relationship with Reach, warranting a for cause dismissal.
As the Civil Resolution Tribunal found Reach had just cause for terminating Ms. Besse, it was entitled to compensation for the 50.76 unaccounted hours, and allowed Reach's counterclaim for $1,506.34.
For further context on time theft, in Retail, Wholesale Department Store Union, the Court outlined the following principles.
Dishonest conduct by an employee may justify summary dismissal, but such a result is not automatic. Just cause for dismissal will exist when employee dishonesty is of such a nature that it gives rise to a breakdown in the employment relationship involving violation of an essential condition of the employment contract, breaches the faith of the work relationship, or is fundamentally inconsistent with the employee's obligations. Generally speaking, theft - including theft of time - falls into this category. Theft is, in fact, the clearest example of conduct warranting summary dismissal at common law.
Where an employee's dishonesty reveals an untrustworthy character that undermines the position of trust or responsibility that is essential to a continued employment relationship, there is just cause for dismissal.
However, where the actions of an employee can be properly characterized as a serious mistake in judgment rather than dishonesty, dismissal may not be justified.