Me Marie-Michelle Savard
A partner at Verreau Dufresne Avocats, Marie-Michelle Savard focuses her practice on labour law, representing businesses and individuals with rigour and a personalized approach. With litigation experience before several provincial and federal tribunals and courts, she stands out for her analytical mind, rooted in her scientific training, and her ability to find practical solutions to complex issues.
View profileBook an appointmentAn employer who discovers that an employee is committing time theft at work has rights. The sanctions, which can go as far as dismissal, are governed by the Act respecting labour standards and by an extensive body of case law. Our labour law lawyers in Québec City and Lévis explain the concept of time theft at work and the employer’s rights, obligations and remedies in this area.
Time theft: definition
The law does not define time theft. However, the Act respecting labour standards and the Civil Code of Québec provide that employees have an obligation to perform their work loyally. In the course of their work, employees must therefore put the employer’s interests ahead of their own and act honestly.
What the case law says
The courts have ruled on time theft in the workplace many times. The concept is all the more relevant today as more and more employees are working remotely.
The case law tends to define time theft as being paid for hours of work that were not performed. Some decisions also require proof of “theft,” meaning that the employee used fraudulent tactics to hide their wasted time and profit at the employer’s expense.
In any event, we believe that even without proof of “theft,” conduct can still breach the duty of loyalty and justify sanctions.
Examples of time theft
A review of the case law identifies various behaviours that, depending on the circumstances, may be treated as time theft and as a breach of the employee’s duty of loyalty:
- Falsifying timesheets
- Leaving early
- Being absent without notice or authorization
- Extending breaks or meal periods
- Sleeping at work
- Repeated, unjustified time-wasting
Use of technology or the Internet
What about using social media, the Internet and cell phones during working hours?
Reasonable personal use of these tools by an employee is sometimes tolerated. According to the decisions rendered by the courts, there must be clear evidence that the employee was using the Internet or technology tools for personal purposes instead of doing their work. An employee who browses the Internet for personal purposes but performs their duties satisfactorily is not necessarily committing time theft, unless fraudulent intent on their part is proven (Jolicoeur ltée v. Bélanger, 2007 QCCS 5640).
Preventive measures
Setting clear expectations for employees
When an employer communicates its expectations to employees in advance about time theft or the use of technology tools, this acts as a preventive measure and also opens the door to more severe sanctions.
We therefore recommend that every employer put in place an internal policy or directive for all employees. Employees must comply with this policy or directive because of the relationship of subordination inherent in the employment relationship.
The internal policy or directive can specify the permitted and prohibited uses of the tools and the applicable sanctions. It can also provide for a confidential complaint system to encourage employees who witness time theft to report it to the employer so that an investigation can begin.
Electronic monitoring by the employer
As remote work becomes more and more important, monitoring employees raises legal issues related to the right to privacy, since the line between home and workplace is blurred. Employers must therefore always act with great caution to avoid infringing on employees’ privacy.
Electronic monitoring generally has the following objectives:
- Tracking the employee’s work performance
- Ensuring compliance with commitments to protect confidential information
- Ensuring the protection of the employer’s computer systems
Preventing time theft and monitoring work performance more generally can therefore justify electronic monitoring measures. For example, the employer can track the history of websites visited and the time spent on them. However, it is essential that the sites were visited during working hours, not during breaks or meal periods. The employer can also install monitoring software that allows remote viewing of the employee’s screen or hours of activity.
Time theft: possible sanctions
Before imposing a sanction for time theft, the employer must carefully analyze the situation and document its actions to avoid acting unlawfully.
The preliminary investigation
Before imposing a disciplinary measure on the employee, the employer must conduct an investigation to confirm that mere suspicions have reached a significant degree of certainty.
The investigation must be as unintrusive as possible and must point to time theft, not simply to a lack of productivity. The difference between the two lies in the employee’s state of mind: there must be fraudulent intent to conclude that time theft occurred. If the conduct is due to laziness, negligence or carelessness, it is more likely a breach of the duty of loyalty rather than time theft.
The employer can decide to suspend the employee pending an investigation if it has reasonable grounds to believe that the employee’s presence at the workplace could harm the employer. A suspension pending investigation must be brief, and the employer must generally pay the employee for the entire suspension period.
Disciplinary measures
Time theft at work is grounds for disciplinary sanctions or, in some cases, dismissal. The seriousness of the misconduct determines how severe the disciplinary measure should be. In McKinley v. BC Tel, [2001] 2 S.C.R. 161, the Supreme Court of Canada teaches that proportionality must guide the employer in choosing the sanction, and that the employer must assess the conduct in context.
To assess the proportionality of the measure, the employer must take into account aggravating and mitigating circumstances. Here are various factors to consider:
- The employee’s cooperation with the investigation
- The nature of the websites visited
- The frequency and duration of personal use
- Repetition or recurrence despite warnings
- The employee’s lack of remorse, or their regret
- Whether or not there is an internal policy on the use of the tools provided to employees
- The employee’s position and the nature of their duties
- The employee’s seniority
- The employee’s disciplinary record
- Behaviour generally tolerated by the employer, etc.
Dismissal
The courts have held that time theft can, in some cases, be valid grounds for dismissal because it breaks the bond of trust between the employer and the employee at fault.
However, time theft does not allow the employer to automatically impose immediate dismissal, since the appropriate sanction must be determined case by case, in light of the circumstances.
Contact us
We invite you to contact the labour law lawyers at Verreau Dufresne Avocats for advice on how to better manage employees and prevent time theft.
Note: The information above is general in nature and does not constitute legal advice. For advice on your particular legal situation, feel free to contact one of our lawyers in Québec City or Lévis.
