What exactly constitutes time theft?
Ed Canning Sep 19, 2011
Within the world of employment law, “time theft” is usually considered an intentionally fraudulent act like misreporting the hours you actually worked or having somebody else punch a time clock card when you are not at work. The federal government argued recently that an employee who has spent more than half of his time for a number of months surfing the net for his own entertainment was guilty of time theft and that his dismissal was justified.
Joe was a 27-year employee of the Department of Immigration with a completely clean disciplinary record. Joe reported to two different bosses who clearly were not communicating well. Every project given to Joe was done properly and on time but he had a lot of extra time available to surf the net, including some pornography. A random monitoring of internet bandwidth used led Joe to be investigated. When confronted with the bizarre amount of time he spent surfing the net, Joe pretty much admitted everything and apologized. The government decided this was a capital offence and Joe was fired.
Unlike most non-unionized workers, Joe was covered by federal legislation that allowed him to grieve his termination and seek reinstatement.
The employer argued that by viewing pornography Joe had clearly violated the employer’s policies and that spending more than half of your day for months on end surfing the net for personal reasons constituted “time theft”. If Joe did not have enough work to do, he should have asked for more.
The issue in this case was not whether Joe had done something wrong, he clearly had. The issue was what the appropriate consequence should be.
You have a 27-year employee with a great track record who is getting all their work done on time and properly. After having rendered almost three decades of their life to the employer, Joe’s behaviour was discovered. The arbitrator in this case found that Joe’s behaviour was not, in fact, “time theft”. That term implies an intentional and criminal act. It is true that if Joe was a better employee, he would have gone looking for more work rather than allowing the employer to pay him hours on end for his own amusement.
On the other hand, if you’ve given 27 years of your life to a job, don’t you deserve at least one second chance?
Ultimately, the adjudicator decided that Joe’s termination was too severe given that he was not provided with any warning or a chance to mend his ways. Joe was ordered reinstated to the job but that did not mean he got away scot free. It took 20 months between the date Joe was terminated until the date the decision was made. Joe was reinstated without back pay. Effectively, the adjudicator decided that a 20-month suspension without pay was appropriate. That had to hurt Joe’s pocketbook.
Joe’s case has been lauded in the press as ground-breaking and somehow important. The outcome, in fact, was rather predictable. Unless Joe had done something clearly criminal or dishonest, it is not surprising that the employer would be expected to allow Joe a shot at rehabilitation. 27 years discipline free builds up a lot of credit with the courts.
Go ahead, be angry with Joe. He deserves it. But with respect, be even more angry at the shoddy way the Department of Immigration was being run. The arbitrator put it best when he said, “I find it surprising that an employee could spend the amount of time that the griever did on non-work-related activities for months without his supervisors noting a lack of production or engagement.” Unfortunately, we will never know if Joe’s two supervisors, who were clearly not minding the store, were disciplined for their part in this story.
As published in The Hamilton Spectator, September 19, 2011