Time theft leads to dismissal for cause

Exclusive to Canadian HR Reporter from Rudner Law.

Is it possible to dismiss an employee for cause or has the court made this impossible with its ongoing series of employee-favouring decisions?

The answer, as our firm regularly tells clients, is that just cause, while difficult to prove, is not a lost cause. An employer may dismiss an employee for cause where the employer follows the correct steps and the facts align.

However, an employer that rushes to judgment to dismiss for cause may find themselves paying damages to the employee in addition to their entitlement to reasonable notice at common law.

In Abbasbayli v. Fiera Foods Company, the court demonstrates the standard of employee behaviour that may support a dismissal for cause, and the process that an employer must follow in order to substantiate its position about the employee's conduct

Allegations of time theft

The employee, Ismayil Abbasbayli, was 55 years old and had worked for the employer, an industrial bakery, in various capacities for 13 years at the time of his dismissal. 

In March 2018, the employer received an anonymous tip that Abbasbayli was engaged in time theft in coordination with another employee. The tip suggested that Abbasbayli and his colleague were recording each other’s time when the other was away.

The employer investigated, reviewing camera footage taken by its time clock and the time clock’s data, which recorded each employee as they punched in and out of the workplace. This showed that both Abbasbayli and his colleague had repeatedly punched in and out for each other, leading to both being paid for more hours than they had worked.

Members of the employer’s management team met with Abbasbayli and his colleague upon the review of this footage and asked for an explanation. Abbasbayli and his colleague both denied any wrongdoing. In a second meeting with Abbasbayli the next day, they showed him the camera footage and timecard data. Abbasbayli became angry, claimed that the evidence was fake, and left.

The employer met with Abbasbayli a third time the following day and asked him for an explanation, but Abbasabayli continued to deny wrongdoing and claimed that he was being framed for his union-organizing activities at the employer’s facility. At trial the employer denied any knowledge of Abbasabayli’s involvement in any unionizing activities.

Just cause dismissal

The employer decided that Abbasabayli’s time theft and his dishonesty during the investigation had damaged the employment relationship beyond repair, and proceeded to dismiss him for cause on March 23, 2018.

At trial, Abbasabayli asserted that the video footage was not reliable as it had time skips; the court noted that none of these were at material times in the footage. He also claimed that the court could not rely on the employer’s evidence as the data from the video cameras and punch clock were maintained on different systems. The court disagreed, finding the employer’s evidence was reliable.

The court also found that the employer’s investigation was appropriate and met the necessary standard of a workplace investigation: to provide a full and fair understanding of the events that had occurred.

Court upholds employer’s decision

Both Abbasabayli and his colleague continued to deny any wrongdoing at trial. The court again disagreed, finding that Abbasabayli and his colleague had improperly swiped the other’s time card to cover for one another when not working.

The court upheld the employer’s decision to dismiss for cause, noting that Abbasabayli was aware that his conduct was wrong as he knew the importance of timecards to the employer’s operations and not to share his timecard with a colleague. Further, Abbasabayli knew he had a duty to be honest and forthright with his employer, including during the investigation.

By being deceptive both during his employment and throughout the investigation, Abbasabayli had breached this duty.

Employee dishonesty

The employer carried out a thorough investigation which the court recognized met the necessary standard for a workplace investigation, by providing the parties with a full and fair understanding of the events that had occurred. The court did not indicate whether findings of the investigation were enough on their own to justify a dismissal for cause.

Instead, the court relied on Abbasbayli’s response when confronted with evidence of his misconduct, in conjunction with the employer’s evidence of his actions, as a basis for its finding that the company had cause to dismiss.

It is of note that the amount of the time theft was not disclosed by the employer: only the act. This, combined with Abbasbayli’s ongoing dishonesty, negated the employer’s ability to trust him. As such, it is possible that the employee only received the benefit of one or two dishonest shifts at work.

From the court’s perspective, the quantum  was irrelevant: what was important was the dishonest act and dishonesty when confronted.

Investigating employee misconduct

Abbasbayli shows that, as Stuart Rudner wrote in his book, You’re Fired! Just Cause for Dismissal in Canada, “just cause is not a lost cause”. It is also a good reminder that when employers suspect misconduct, they must investigate properly and give the employee an opportunity to respond before imposing disciplinary action.

Had Abbasbayli acknowledged his actions and not maintained his dishonesty, it is possible that the court may have found that he was entitled to a second chance and that dismissal for cause was not warranted

This case shows the steps that an employer needs to take to dismiss for cause and to then have a defensible position in court. Even then, however, there is no guaranteed outcome. All an employer can do is take every reasonable step before dismissing to safeguard its position. 

Geoffrey Lowe is an associate lawyer at Rudner Law in Toronto. He can be reached at (416) 864-8500 or [email protected].