'The employer has to have trust in you that you're doing the work that you're being paid for'
An Alberta arbitrator has upheld the dismissal of a worker for taking long breaks while submitting time sheets reporting full hours worked.
Fujitec Canada is a manufacturer of elevators and escalators based in Toronto. It has a location in Calgary, where it was involved in a construction project in the city’s Stampede Park in 2022.
The worker was employed as an elevator mechanic at the Stampede Park project site. All workers at the site were required to enter and exit the site through two electronic turnstiles recording the times of entry and exit. There were five other gates, but these were only for vehicles delivering construction materials.
The worker worked with a helper who was required to stay with him and take instructions from him. Other than the helper, he worked independently without direct supervision most of the day.
The worker’s regular hours totalled eight paid hours including two paid 15-minute breaks, plus a 30-minute unpaid lunch break. It was normal practice for employees to skip their afternoon break and leave 15 minutes early. If they wanted to skip their lunch to leave earlier, they needed permission from the foreman.
Investigation for time theft
In late 2022, the foreman became concerned that the worker was arriving late and leaving early, although he was claiming eight hours on his timesheet. He asked the general contractor that owned the site for a report of the worker’s swipe-in and swipe-out times at the turnstiles from Oct. 17 to Nov. 24. There was no work for the worker outside the turnstiles and the only reason he would leave would be for a lunch break – if he had to unload supplies from a truck it would be at one of the other gates.
The reports showed that the worker often left the site for a mid-morning break longer than 15 minutes and he often left at other times. Another supervisor reviewed the report and agreed it should be sent to Fujitec’s vice-president of the Western Region.
“When [an employer] is faced with a situation like this, you want to do your best to try to gather whatever evidence you have of time theft or other misconduct you're thinking about,” says Stephen Torscher, a labour and employment lawyer at Carbert Waite in Calgary. “[Fujitec] did their best to collect objective evidence and then they took that case to someone else for another point of view, and then confronted the employee with it and gave him an opportunity to respond.”
“Generally, those are the steps that you would take in any kind of investigation of misconduct - you gather the evidence, you present your case to the employee, you give them a chance to respond - and then once you have all that in front of you, you make your decision about whether any kind of discipline is warranted and, if so, what that discipline would be,” he adds.
The foreman and supervisor met with the worker on Nov. 30 after a safety meeting and showed him the turnstile records. The worker didn’t provide an explanation for the discrepancy between the records and his timesheets, although he said he had a notebook that recorded his hours. However, he later said he misplaced it.
Guilty of time theft
Fujitec determined that the worker was guilty of time theft. Since elevator mechanics worked without supervision, trust was important in their employment. In addition, Fujitec had a health and safety program document - which the worker had reviewed as part of his orientation - that referenced a three-step disciplinary policy but also identified theft as misconduct that would result in immediate dismissal. The company decided to terminate the worker’s employment on Dec. 8.
The records showed that the helper’s turnstile records reflected the same discrepancies, but Fujitec did not dismiss him because he was under the worker’s direction and was following his lead.
The union grieved the dismissal, alleging that there was no cause or termination was excessive. The worker said that no one had told him that the turnstile system would be used for timekeeping purposes and that the system was unreliable, as sometimes it wouldn’t unlock when the access card was scanned. It was also disabled by power outages on occasion, he said.
The worker explained that sometimes he had to do work outside of the turnstiles, such as tracking down representatives of the general contractor, and there may have been times when he entered the site through the vehicle gates – although he acknowledged that there was no reason to use the gates except for unloading vehicles.
Fujitec argued that the worker wasn’t a foreman and shouldn’t need to meet with the general contractor, and he sometimes skipped lunch and his breaks to leave early. The worker also couldn’t recall specific circumstances for several days on which he was outside the turnstiles for more than an hour.
Proportionality of discipline
The arbitrator noted that the Supreme Court of Canada established that proportionality between the employee misconduct and the discipline is key in assessing just cause for dismissal. In the context of this case, time theft was considered a “major industrial offence” in the elevator construction industry, the arbitrator said.
The arbitrator also noted that the employer’s justification for dismissal was based on circumstantial evidence without actual witness accounts, so the evidence must be “clear, convincing and cogent to satisfy the balance of probabilities test.”
The evidence indicated that there were some issues with the turnstile system prior to Oct. 31, but the problem was fixed. The data from Oct. 31 onward was reliable, which left three weeks of data showing a pattern of discrepancies with the worker’s hours, particularly lengthy mid-morning breaks, said the arbitrator, adding that the worker agreed that the reports accurately recorded his start and exit times.
The arbitrator didn’t accept the worker’s explanations for why he would leave through the turnstiles for work – it wasn’t necessary for unloading vehicles at the gates and his duties didn’t include meetings with the general contractor. In addition, meetings didn’t match up with the regular mid-morning pattern of absences, said the arbitrator in finding that Fujitec established that the worker engaged in a pattern of time theft.
The consistency of the extended breaks showed that there was an intentionality behind the behavior, according to Torscher.
“When the burden flipped back to the employee to provide an explanation, there was no real credible explanation for why he would be missing particular periods of time,” he says. “And in the absence of a credible explanation, the arbitrator was left with nothing before him other than the pattern of behavior, the breach of trust, and demonstrated time theft that justifies the termination.”
The arbitrator also agreed that it wasn’t unfair that the worker’s helper didn’t face a similar sanction, as the helper had to follow his directions.
Termination followed policy
Fujitec’s case was helped by the fact that it had a policy that listed theft as grounds for summary dismissal, says Torscher.
“If you want to rely on any policy in the workplace, you need to ensure that it's a reasonable policy and that the employee is aware of it,” he says. “The employer in this case was able to demonstrate that and it was a really helpful point in favour of the employer’s argument.”
The arbitrator noted that the worker was in a position of trust as he worked largely unsupervised. In addition, the practice of allowing employees to skip breaks to leave early was predicated on an honour system, so it was a serious breach of trust to take advantage of that, the arbitrator said.
The worker’s lack of remorse was also a factor in whether termination was warranted, says Torscher.
“[The worker] didn't, at any point, really admit that anything he did was inappropriate and apologize for it, and those kinds of things are factors that arbitrators will consider when they're looking at the seriousness of the discipline,” he says. “You can't believe that an employee has learned a lesson or won’t do it again when he’s not even admitting that what he did was wrong.”
The arbitrator determined that the worker’s time theft caused a breakdown in the employment relationship that amounted to just cause for dismissal. The grievance was dismissed.
Nobody wants to work in an environment where every move is being watched, but the flip side to having the freedom of not having anyone looking over your shoulder is maintaining trust in the employment relationship, says Torscher.
“The employer has to have trust in you that you're doing the work that you're being paid for, you're not fudging the timesheets, you're doing what's expected of you,” he says. “So if you breach that trust, that's considered to be very serious workplace misconduct and can be worthy of summary dismissal.”
