Time Theft in Ontario

The term “time theft” carries a heavy connotation, suggesting that an employee’s misconduct is exceptionally severe and equates to criminal behavior. However, this language framing has been scrutinized by arbitral jurisprudence. In Grand & Toy Ltd. v. United Steelworkers of America, Local 9197 (Natal Grievance), Arbitrator Paul Craven argued that the term “time theft” implies that the time in question inherently belongs to the employer and is being wrongfully taken by the employee. Instead, Craven posited that the time, along with an employee’s strength, intelligence, skills, and capacities, actually “belongs” to the employee. In the employment context, an employee agrees to follow the employer’s direction during work hours in exchange for wages. Thus, the time remains the employee’s, albeit used under the employer’s guidance.

Craven’s perspective

Craven suggests that “time theft” is more accurately described as insubordination rather than theft. Furthermore, he ruled that the company’s rule against “time theft” was inconsistent with the just cause provisions in the contract, as it mandated termination for any instance of “participating in activities on company time that do not constitute company business.” Ultimately, Craven upheld the principle of progressive discipline over immediate termination in response to “time theft” violations.

Craven’s perspective was endorsed by the Ontario Labour Relations Board in International Union of Elevator Constructors, Local 50 v. Otis Canada. Here, “time theft” may not involve outright refusal to obey an employer’s direct order but rather constitutes “culpable inefficiency” against clear performance expectations. This behavior is akin to the historical practice of “soldiering,” where workers deliberately reduce their productive output. In a unionized environment, such collective soldiering can be deemed an unfair labor practice under Ontario’s Labour Relations Act, unless done during a legal strike. The categorization of “time theft” is crucial to avoid implying that an employer owns an employee’s time. Mischaracterizing “time theft” as actual theft rather than insubordination leads to a misunderstanding of the offence.

Insubordination and Dismissal

While “time theft” aligns more closely with insubordination, both Ontario law and broader Canadian law recognize insubordination as misconduct that justifies employer discipline. Workers can be disciplined for insubordination, but the response must be proportionate to the misconduct. If an employer terminates a worker for “time theft,” the punishment may be deemed excessively severe unless justified by the circumstances. The Supreme Court of Canada, in McKinley v. BC Tel, established that dismissal for cause is warranted only in the most severe cases. Employers are expected to apply progressive discipline to manage and correct employee misconduct before resorting to termination unless the behavior is particularly egregious. Failing to apply progressive discipline may render a termination for cause unjustifiable. However, if progressive discipline is applied and the misconduct persists, employers may have grounds for termination for cause.

In cases of “time theft” insubordination, minor instances may not justify termination for cause. However, repeated instances can cumulatively warrant termination without notice, as outlined by the Ontario Superior Court in Daniels v. Canadian Gift and Tableware Assn.. Individual, minor instances of insubordination may not justify immediate termination, but a pattern of such behavior can lead to justifiable termination.

The Impact of Remote Work

Discussions on this topic have gained prominence following the COVID-19 pandemic and the rise of remote work. In Ontario, employers are legally allowed to monitor employees remotely through electronic systems. The Employment Standards Act requires most employers to provide a written policy on electronic monitoring, detailing how and under what circumstances monitoring occurs, and the purposes of the information gathered. While employers are permitted to use this monitoring to track “time theft,” both parties should recognize the limitations of algorithmically generated reports, which can produce inaccurate representations of time spent on tasks due to modeling issues.

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