As remote work becomes more common, many employers have turned to time-tracking software to monitor employee productivity. In a recent decision of the British Columbia Civil Resolution Tribunal (“Tribunal”)1, an employer successfully defended a wrongful dismissal claim by using time-tracking data to demonstrate a former employee had committed time theft. Significantly, the Tribunal recognized the seriousness of time theft particularly in a remote-work environment when direct supervision is absent.
While time-tracking software can be a useful tool, there are legal do’s and don’ts, primarily regarding employee privacy. The rules differ across Canada, so before installing such software it is prudent to consult with an experienced employment lawyer.
What happened in the B.C. case?
Karlee Besse (“Besse”) worked remotely as an accountant for Reach CPA Inc. (“Reach”). After approximately four months, with Besse’s knowledge, Reach installed time-tracking software on her laptop to track productivity.
A discrepancy on one of Besse’s timesheets prompted Reach to review the time-tracking data which revealed that Besse had submitted timesheets for more than 50 hours of work not tracked by the software. When Besse could not account for the hours, Reach terminated her employment for cause.
Besse filed a claim against Reach in which she alleged wrongful dismissal and sought to recover unpaid wages and severance pay. Reach counterclaimed for repayment of, among other things, wages it paid Besse for the 50 hours in dispute.
Just cause for termination upheld
Besse argued the discrepancy between the timesheet and time-tracking data was primarily because she spent significant time reading paper copies of documents – time not captured by the software. The Tribunal rejected this argument because the software also tracked printing activity and showed Besse did not print the volume of documents claimed.
Noting the importance of trust and honesty in an employment relationship, the Tribunal upheld Besse’s dismissal for cause and awarded damages to Reach:
[…] Time theft in the employment context is viewed as a very serious form of misconduct […] Given that trust and honesty are essential to an employment relationship, particularly in a remote-work environment where direct supervision is absent, I find Miss Besse’s misconduct led to an irreparable breakdown in her employment relationship with Reach and that dismissal was proportionate in the circumstances. So, I find Reach had just cause to terminate Ms. Besse’s employment2.
Lessons for employers
The Besse decision is a good example of how time-tracking software can be used to monitor employee productivity, especially if an employee works remotely under limited supervision. However, before installing monitoring software, it is important to consider legal do’s and don’ts.
Ontario
Ontario is the only Canadian province that requires an employer to have a written electronic monitoring policy. Under the Employment Standards Act, 2000, every provincially regulated employer with 25 or more “employees”3 as of January 1 is required to have a written policy on the electronic monitoring of employees in place as of March 1 of that year. The term “electronic monitoring” is not defined but is generally understood to be all forms of employee and assignment employee monitoring that is done electronically. Examples include:
- GPS
- Productivity software
- Software that monitors email, chats, and websites visited during working hours
The policy must describe:
- The means through which the employer engages in electronic monitoring.
- The circumstances in which the employer may monitor employees.
- The purpose for which the information collected may be used.
An electronic monitoring policy is required even if the employer does not electronically monitor its employees, in which case the policy may simply state the employer does not electronically monitor employees.
British Columbia and Alberta
In British Columbia and Alberta, privacy legislation governs the use of monitoring software in the workplace. Information collected, used, or disclosed by an employer must be reasonable for the purpose of establishing, managing, or terminating the employment relationship. While an employer does not need to obtain employee consent to collect, use or disclose the information, the employee must be notified before the information is collected.4
Quebec or Federally Regulated
A Quebec or federally regulated employer must comply with respective privacy legislation which requires an employer to obtain employee consent before it collects, uses or discloses an employee’s personal information.5 Furthermore, Quebec’s legislation stipulates an employer may only collect personal information for a “serious and legitimate reason”, and an employee must be told the reason for the collection, how the information will be used and who will have access to the information.6
To learn more and for assistance, contact your Sherrard Kuzz LLP lawyer or info@sherrardkuzz.com
1Besse v Reach CPA Inc., 2023 BCCRT 27 (CanLII) (Stewart, Tribunal Member) [Besse].
2Ibid at para 26.
3As defined in Ontario’s Employment Standards Act, 2000, SO 2000 c. 41, s.1.
4Personal Information Protection Act, SA 2003, c P-6.5 at s 15(1); Personal Information Protection Act, SBC 2003, c 63 at s. 13.
5Personal Information Protection and Electronic Documents Act, SC 2000, c. 5 at s. 4.3.1 of Schedule 1; Act respecting the protection of personal information in the private sector, CQLR c P-39.1 at s. 6.
6 Act respecting the protection of personal information in the private sector, CQLR c P-39.1 at s. 6 – 8.
