Time Theft in Arbitral Jurisprudence
The phrase “time theft” itself is particularly loaded to paint the alleged misconduct of a worker as exceptionally severe and associate their alleged misconduct with criminality. However, this sort of language framing has been targeted by arbitral jurisprudence on the matter. In Grand & Toy Ltd. v. United Steelworkers of America, Local 9197 (Natal Grievance), Arbitrator Paul Craven stated that the phrase “time theft” presumes the time belongs to the employer and is being misappropriated by the worker. Instead, Arbitrator Craven stated that the time actually “belongs” to the worker, along with the worker’s strength, intelligence, skills, and innate capacities. In the employment context, the worker undertakes to accept the employer’s direction for the duration of employment in exchange for wages and subject to the terms of employment. The time still belongs to the worker, but the worker agrees to use that time under the employer’s direction. In this context, Arbitrator Craven indicates that “time theft” is more closely related to the industrial offence of insubordination rather than theft. Furthermore, Arbitrator Craven held the company’s particular rule against “time-theft” in this case was inconsistent with just cause provisions in the contract, as it prescribed termination for any instance of “participating in activities on company time that do not constitute company business”. Ultimately, Arbitrator Craven upheld the long-established standard of progressive discipline rather than immediate termination in response to violations of the “time-theft” policy.
Arbitrator Craven’s account was adopted by the Ontario Labour Relations Board in International Union of Elevator Constructors, Local 50 v. Otis Canada. In this respect, “time theft” may not necessarily involve an outright refusal to obey a direct order from an employer, but rather is a form of “culpable inefficiency” in the face of well-understood performance expectations. Indeed, there are similarities between such behaviour and the long-standing practice among workers referred to as soldiering. In a unionized context, collective soldiering, or deliberate reduction of productive output, can be considered an unfair labour practice under Ontario’s Labour Relations Act unless it is done while workers are in a legal strike position. It is very important how time theft is categorized and understood, lest the language be used to imply that a worker’s time, and hence their life, is owned by their employer throughout the duration of their employment. This simply is not the case. Characterizing time theft as theft rather than as insubordination results in a misapprehension of the offence and an overly severe response to the misconduct.
Insubordination and Dismissal
While “time theft” may be more akin to insubordination, both Ontario law and Canadian law more broadly consider insubordination misconduct justifying discipline by employers. It is well established that workers can be subject to discipline for insubordination in an employment context. However, it is also well established that the discipline must be a proportionate response to the worker’s misconduct. If an employer attempts to terminate a worker for cause because of “time theft”, the degree of discipline may be too severe to warrant termination for cause based on the circumstances. As outlined by the Supreme Court of Canada in McKinley v. BC Tel, dismissal for cause is only warranted in the most severe circumstances. Instead, employers are expected to utilize progressive discipline to temper and manage worker misconduct prior to termination, unless the misconduct is so aggravating and severe as to warrant immediate termination. If the employer fails to apply progressive discipline, the termination for cause may be unduly severe. If the worker after being subject to progressive discipline continues to engage in the misconduct, in this case, insubordination, the employer may be able to justify for-cause termination.
In the case of “time theft” insubordination, a minor instance of this occurring may be too meagre to warrant termination for cause. However, several repeated instances may cumulatively justify termination without notice, as outlined by the Ontario Superior Court in Daniels v. Canadian Gift and Tableware Assn. While minor and individual instances of such insubordination may not warrant termination for cause, repeated and cumulative instances can justify such termination.
Discussions of “time theft” have become more prominent in the wake of the COVID pandemic and remote work. Employers in Ontario are legally permitted to monitor workers remotely via electronic monitoring systems. Ontario’s Employment Standards Act entitles most workers to have their employer provide a written policy on electronic monitoring and make such a policy available and known to them. The policy must also outline how and in what circumstances the employer can monitor the worker, and the purposes for which information obtained via electronic monitoring is used. Nevertheless, employers are not prohibited from electronically monitoring remote workers, and may use such monitoring information to construct accounts of “time theft”. However, workers and employers alike should be aware of the limitations of algorithmically constructed accounts of “time theft”, which may result in inaccurate accounts of time spent on tasks due to algorithmic modelling issues.