I was fired for time theft. Is this legal?

The Question

I’ve recently been terminated from my employment, where I was working with a tech startup, on the grounds of what was called “time theft.” I was punching into work when I arrived early, up to 15 minutes. I’ve been at the company for a year and three months and was offered one week of severance. Would this be considered a wrongful dismissal?

The First Answer

Balraj K. Dosanjh, labour and employment lawyer, Cavalluzzo LLP, Toronto.

In general, an employee may have a wrongful dismissal claim if: (1) they were wrongfully terminated for cause (i.e. “just cause” or “for cause” terminations) or (2) they were terminated without cause but the notice or severance offered by their former employer is inadequate. In your case, since your employer has offered “1 week severance,” it is possible that you were actually terminated without cause even though the employer cited “time theft” as a reason for its decision to end the employment relationship.

As mentioned, you may have a wrongful dismissal claim for a termination without cause if the notice offered is inadequate in the circumstances. It appears your employer has offered you below the minimum statutory entitlement in your case. For example, in Ontario, employees with a year and three months of service are entitled to two weeks notice at a minimum. In addition, you may be entitled to a longer notice period depending on factors such as your age, length of service, nature of your position, and the availability of similar employment. You should also check your employment contract (if applicable), which may address your notice entitlements upon termination.

In the event your employer is in fact alleging “cause” in your case, you should know that “just cause” terminations are reserved for the most serious employment transgressions such as fraud or theft. If an employee’s misconduct falls into this category, then the employer is generally not obliged to pay the employee any notice upon termination (unless, for example, your employment contract stipulates otherwise). Whether “time theft” constitutes just cause for termination is a highly factual inquiry and depends on factors such as whether there was dishonest intent.

The Second Answer

Charles Osuji and Claire Lee, Osuji & Smith Lawyers, Calgary.

Time theft occurs when the employee gets paid for time they did not actually work, hence “stealing the employer’s time.” Common examples of time theft would be clocking in early and clocking out late, taking longer breaks than permitted, taking excessive time to complete personal tasks at work, browsing the internet for non-work-related purposes, etc. Firing on the mere suspicion of time theft may be considered a wrongful dismissal unless the company follows proper guidelines, such as conducting an investigation to ensure that the dismissal is procedurally fair and is carried out in good faith.

It is important that the employee is given a fair opportunity to defend the allegations laid against him and to explain himself. While dishonesty and theft are often considered “just cause” to summarily dismiss the employee, each case must be individually assessed as to whether the sanction imposed, i.e., termination, would be proportional to the seriousness of the misconduct. When there is found to be sufficient grounds to terminate the employee, the company is no longer required to provide any termination notice or severance payment.

In light of the above, given that you have been offered severance, it is possible that the company’s finding on your time theft allegation is inconclusive, in which case the reasonableness of the offer would be determined based on your age, position, experience, length of service, availability of alternate employment, etc., subject to the terms of your employment contract. With the limited information you have provided, it is difficult to say whether your termination would be considered wrongful. If you have not signed a release in favour of the employer, we recommend you reach out to an employment lawyer in your community.

Source: Our Generation & The Globe and Mail

Also read: Employee time theft while working remotely