Electronic Monitoring and Remote Work Time Theft
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On January 11, 2023, in Besse v. Reach CPA Inc., Tribunal Member Megan Stewart of the British Columbia Civil Resolution Tribunal found that a remote working accountant’s employer had just cause to terminate her employment when it discovered that she engaged in time theft. The evidence against the employee was gathered through electronic monitoring software. In addition to finding just cause for termination, the Tribunal also ordered the accountant to pay her employer just over $2,750 in debt, damages, interest and fees.
Karlee Besse was employed as an accountant by Reach CPA Inc. (“Reach”) for less than one (1) year. She worked remotely from home and was given an advance to pay for home office equipment and to pay her Chartered Professional Accountant (CPA) fees. A few months after she commenced employment, Reach installed a time-tracking program called TimeCamp on Ms. Besse’s work laptop. This installation was with Ms. Besse’s knowledge and was part of an effort by the employer to help Ms. Besse work more productively.
Reach reviewed and analyzed the TimeCamp data on Ms. Besse’s laptop for just over one month and discovered 50.76 unaccounted hours that Ms. Besse reported on her timesheets but did not appear to have spent on work-related tasks. After providing Ms. Besse with an opportunity to respond to its findings, Reach terminated her employment with cause.
Ms. Besse filed an application alleging that she was wrongfully dismissed. She also claimed that she was owed over $1,300 in unpaid wages. Reach denied that Ms. Besse was owed unpaid wages and, in fact, filed a counterclaim for the paid wages that amounted to time theft. Reach also claimed that Ms. Besse owed $2,903, which was part of the advance, some of which was ultimately deducted from Ms. Besse’s final paycheck. In total, Reach counterclaimed for $2,603.07.
The first part of Tribunal Member Stewart’s decision was about whether Reach has just cause to terminate Ms. Besse’s employment. The test for just cause is whether an employee’s misconduct amounts to an irreparable breakdown in the employment relationship. Tribunal Member Stewart found that the test was satisfied in this case, and concluded that:
- Besse’s evidence that she couldn’t work the TimeCamp software to properly record her personal v. work time should not be accepted.
- TimeCamp accurately recorded Ms. Besse’s work activity and that there were 50.76 unaccounted hours recorded on her timesheets. Thus, Ms. Besse engage in time theft;
- Given that trust and honesty are essential to an employment relationship, especially in a remote-work environment where direct supervision is absent, Ms. Besse’s misconduct led to an irreparable breakdown in her employment relationship with Reach; and
- Dismissal was proportionate in the circumstances.
Reach had just cause to terminate Ms. Besse’s employment and she was not entitled to notice or severance pay. Additionally, Tribunal Member Stewart allowed Reach’s claim for compensation for the 50.76 unaccounted hours. Further, she concluded that Reach was entitled to the unforgiven part of the advance to Ms. Besse and dismissed Ms. Besse’s claim for unpaid wages.
Ultimately, Ms. Besse was ordered to pay the full amount for which Reach counterclaimed ($2,603.07), in addition to pre-judgement interest and tribunal fees.
c) Implications for Ontario Employers
One aspect of the case that is not explored by the British Columbia Tribunal is electronic monitoring. British Columbia does not have a requirement that employers have an electronic monitoring policy in place. As noted, Ms. Besse was aware that the software was installed and how it worked. It is unclear whether Ms. Besse was advised that the company would rely on the evidence from the software to confirm that she actually worked the hours that she submitted on her time sheet.
In Ontario, all employers with more than 25 workers are required to have an electronic monitoring policy. The policy must explain how employees are monitored and the purpose of the monitoring. With the prevalence of remote work, having some means of tracking whether employees are actually working when they are not directly supervised is controversial, but also sensible. It is also permissible if employees are notified that they are being monitored.
The British Columbia Civil Resolutions Tribunal is like Ontario’s Small Claims court. The processes are less formal than a regular court so the value of a precedent from the Tribunal is an unanswered question. We suspect that the Besse case will become a go to precedent for employers in time theft cases. Time will tell if it is followed by other Courts or Tribunals. In the meantime, from an employer’s perspective it is heartening to read a decision where the problem of time theft is taken seriously.
The article in this update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hunter Liberatore Law LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hunter Liberatore Law LLP. ©
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