Can an employer treat time theft as seriously as theft of property when considering discipline?
Question: Can an employer treat time theft as seriously as theft of property when considering discipline?
Answer: "Time theft" occurs when an employee receives compensation for hours that they have not actually worked. In this context, time theft has been treated by decision-makers as meriting discipline for the same reasons as property theft. The core element of the employment relationship is a mutual bond of trust between the employee and the employee. Decision-makers have characterized time theft, like property theft, as directly damaging that core element. Accordingly, time theft and property theft constitute an equally serious culpable act.
Although time theft is a culpable act, the level of discipline that is merited is context specific and is subject to standard mitigation factors, which include length of service, past disciplinary history, relevant employer policies and whether the employee showed remorse when caught. Decision-makers have upheld termination for time fraud in circumstances where the only mitigating factor is length of service.
Decision-makers have strictly defined what constitutes time theft. In order for a culpable action to be accurately characterized as time theft, that action must include an overtly fraudulent act. Examples of overly fraudulent acts that constitute time fraud include the alteration of time cards, employees punching in for each other or failing to record or falsely recording attendance on an attendance management system. If an intentionally fraudulent act is lacking, the culpable action may not be characterized by a decision-maker as constituting time theft. For example, decision-makers have held that, although excessive internet use for personal reasons is culpable behaviour, that usage lacks the intentionally fraudulent element and, as a result, does not constitute time fraud.
As outlined above, much of the analysis regarding time fraud is context specific. Accordingly, employers that are considering discipline for an incident of time theft are encouraged to seek advice from legal counsel.
Leah Schatz is a partner with MLT Aikins LLP in Saskatoon. She can be reached at (306) 975-7144 or [email protected].