‘Time theft is considered even worse... where an employee is provided with trust to work independently’
“There are a few categories of misconduct that are considered so significant and so bad that when an employee engages in them, it can attract discharge, even for a first-time offense or for long-service employees - and time theft is one.”
So says labour and employment lawyer Laura Dunnigan of Mathews Dinsdale in Calgary, after an Alberta arbitrator upheld the firing of a worker for two instances of time theft on the same day.
Martin-Brower of Canada Co. operates a supply-chain business providing food, beverages, and supplies to McDonald’s restaurants – the company’s only client. The company maintains several distribution centres and employs drivers to make deliveries with its fleet of trucks.
The company sets up scheduled runs for drivers that limit on-duty time and requires drivers to maintain logs to ensure compliance with hours-of-work regulations. Drivers also have to certify the accuracy of their logs and use an electronic system called “Samsara” to maintain their logs while allowing Martin-Brower to track its vehicles. Maintaining and certifying driving logs are the responsibility of drivers.
The worker began employment with Martin-Brower as a driver on July 22, 2020, working out of the company’s Calgary distribution centre. He worked with little supervision, as he was on his own for most of the day. Logging into the Samsara system indicated when he was at work and logging off showed when he finished.
The collective agreement provided for a lunch break of up to 45 minutes for drivers plus one “relief period” of no more than 15 minutes during each half of their shift. It was agreed that they were to take breaks during “work delays, schedule advances and/or other such times so as not to interfere with normal delivery or disrupt the customer’s operation.” Drivers often had waiting time when delivering to various restaurants, which the company considered a break.
Worker paid for time not worked
On July 26, 2023, a delivery by the worker was noted as late and the worker had written “slow” on his manifest. Martin-Brower audited the worker’s time that day in Samsara and discovered that he had taken 26 minutes for lunch, although he had requested to be paid for a “missed lunch of 45m.” Further examination revealed that the worker had logged out of work more than an hour after he had left the company’s premises, leading to him being paid for an extra hour that he hadn’t worked.
The employer investigated and found that the worker had requested payment for the lunch break after he had taken the 26-minute break. It reached out to the McDonald’s location to which he had been delivering at the time asking why the worker had been delayed, and the restaurant argued that it wasn’t the fault of its staff. It provided video surveillance footage showing the worker parking his truck, going to a convenience store to buy food, and then sitting in his truck to eat for 26 minutes.
Martin-Brower also confirmed that the worker had left the property an hour before logging out of the Samsara system, and the next day he had certified that his driver log was correct.
Martin-Brower terminated the worker’s employment on July 28 for time theft.
The union grieved, arguing that the worker had a clean disciplinary record and the company hadn’t interviewed the worker to allow him to provide an explanation. The worker also said that he believed in advance that he wouldn’t be able to take a lunch break, so he requested to be paid. He only ended up taking the break while he was waiting to access the dock at the store where the McDonald’s was located. He also said he felt he was owed for missed breaks.
The union maintained it was an error made by the worker while under time pressure and termination was excessive.
Employer audit, investigation
The arbitrator found that the worker, like all drivers for Martin-Brower, was required to log his work hours and certify the accuracy of the logs, and there was no doubt that the worker was familiar with this system and his obligations.
Given the video surveillance footage and the observations of witnesses at the restaurant, the arbitrator determined that the worker’s request for payment for a missed lunch wasn’t supported by the evidence. If the worker felt he was owed for missed breaks, he should have made a claim when it happened and not after discipline occurred for his actions, said the arbitrator, noting that the worker didn’t correct the discrepancy in the Samsara system afterwards despite having the opportunity to do so.
The audit also revealed that the worker logged out of the Samsara system more than one hour after leaving Martin-Brower’s property, which the worker attributed to a possible system error from him not being close to the vehicle. The arbitrator found this explanation not credible, preferring the company’s evidence that the system didn’t require proximity to the vehicle to log off and, again, that the worker had the responsibility to certify the accuracy of his logs.
The arbitrator determined that the worker was culpable for two instances of time theft and noted that time theft is considered serious misconduct in labour law that can justify discharge, even for a first offence and for employees with a clean disciplinary record. The arbitrator found few mitigating factors, noting the worker’s relatively short service of three years and the absence of credible explanations or remorse from the worker.
“Time theft is considered even worse in a scenario where an employee is provided with trust to work independently and to personally be responsible for keeping their own time,” says Dunnigan. “So it's a heightened offense if time theft occurs in that scenario, because how is the employer supposed to trust the worker to engage in ethical timekeeping if he’s been caught stealing?”
Clear evidence of time theft
While it’s often a misstep when an employer’s investigation doesn’t give an employee the opportunity to explain themselves or respond to the allegations, it wasn’t an issue in this case, according to Dunnigan.
“[Martin-Brower] had clear evidence – video footage and eyewitnesses from the client saying they watched him go into a store - that the worker engaged in time theft, which is a serious offense in both labour law and employment law, and he had no reasonable explanation at trial,” she says. “He had the opportunity to provide an explanation and he wasn't capable of giving a valid or a credible one - when he said that he didn't get a break and things were slow, he wasn't truthful.”
The worker’s attitude towards the time theft was also a significant factor, adds Dunnigan.
“It seemed significant to the arbitrator that [the worker] was very cavalier about his approach to the accuracy of his logs and certifying them without checking to make sure they were accurate,” she says. “He not only provided what wasn’t credible and arguably dishonest explanations for his actions, but he also didn't indicate that he would change his behavior or that it was serious - what the company and the arbitrator were left with was an employee that they can't reasonably believe won’t engage in the same conduct again.”
The arbitrator found that Martin-Brower had met its burden to establish the worker’s culpability for time theft and that discharge was a just and reasonable disciplinary response. The grievance was dismissed.
“In the rare case where you have very clear evidence of actual time theft and the employee can be shown to have knowingly and willingly engaged in it, you may be in a position to terminate for cause,” says Dunnigan. “I would recommend still putting it to the individual and getting their explanation in an investigation, but if there isn't a credible explanation for the most part, you can probably fairly safely proceed to terminate for cause.”
