Falsifying time cards

Question: Would multiple instances of falsifying time cards be just cause for dismissal? What if it is a unionized environment?

Answer: Summary dismissal is one of my favourite topics within the realm of employment law, and it is one I study, write and read about frequently. Unfortunately, the conclusion that must be reached is that when it comes to summary dismissal, there are no hard and fast rules.

To begin with, courts have made it clear that in order to assess whether an employer has just cause for dismissal, it must adopt a contextual approach. This requires a two-step process. First, the employer must consider whether the employee is guilty of misconduct or poor performance. Regardless of the outcome of this analysis, that is far from the end of it. Rather, the employer must then consider whether the misconduct or poor performance is sufficiently egregious so as to warrant immediate dismissal. In so doing, the employer and the courts are to consider the entirety of the employment relationship. This includes the length of the relationship, the nature of the individual’s position and the degree of trust that is required, the individual’s contributions to the organization, and the individual’s past history of misconduct and discipline.

It is entirely possible for two employees to be guilty of the exact same misconduct, but for the appropriate penalty to be different in each case. By way of example, if two employees are caught falsifying a time sheet, but one employee has worked for 30 years with an unblemished record, and the other employee has only been employed for three months, during which time she has already been disciplined three times, it is quite possible a court will determine that the former should be given a second chance, whereas the latter was rightfully dismissed.

It is also important to know the courts will consider issues of condonation of the misconduct. Specifically, was the individual disciplined or warned for previous instances of falsifying time cards? Is this common practice within the organization, and explicitly or implicitly tolerated? All of these factors will come into play. It is imperative that the employer discipline the employee for all instances of such misconduct in order to justify the ultimate dismissal.

With respect to the unionized environment, collective agreements will typically set out a fairly detailed discipline process which will be based upon escalating forms of discipline with each instance of misconduct. The employer’s right to summarily dismiss the individual will depend, among other things, upon the wording of the collective agreement.