Stealing time compared to stealing employer property
Question: Is time theft by an employee — such as not working while being paid during business hours — considered as serious as theft of an employer’s physical property? Both cost the employer money.
Answer: Time theft can be quite costly for an employer and can, therefore, result in severe consequences. It should result in discipline, which will depend largely on the circumstances. There are no absolute rules when it comes to discipline and dismissal; even property theft will not necessarily result in dismissal in all cases.
As I discuss at length in my book, You’re Fired! Just Cause for Dismissal in Canada, while misconduct should result in discipline, summary dismissal is reserved for the most egregious circumstances. Once an employer has established that the employee engaged in misconduct, while will require an impartial investigation, then the appropriate discipline can be assessed. This will require a contextual approach which, as our courts have explained, involves a consideration of all relevant factors, including:
• The employee’s length of service
• The employee’s past disciplinary history
• Any relevant policies
• The employee’s response when confronted.
In order to show that just cause for dismissal exists, the employer will have to show that in light of all the circumstances, the relationship has been irreparably broken. In many cases, the employee’s response when confronted will be the critical factor. If they are dishonest and/or insolent, and refuse to accept responsibility for their actions or provide any assurance that they conduct themselves properly in the future, then it is more likely that summary dismissal will be warranted.
Stuart Rudner is the founder of Rudner Law, an employment law firm in Markham, Ont. He is the author of You’re Fired: Just Cause for Dismissal in Canada published by Thomson Reuters Canada. He can be reached at [email protected] or (416) 864-8500.
