With the cultural shift to a work-from-home world, many employers have found themselves with an enhanced interest in keeping a watchful eye on employee productivity given the lack of in-office supervision. One technique gaining traction is time-tracking software. The British Columbia Civil Resolution Tribunal has recently considered the implications or possible complications that may arise from the use of such software in the recent decision of Besse v. Reach CPA Inc., 2023 BCCRT 27 which is of interest to employers and employees alike.
The Issue:
Karlee Besse was terminated from her accountant position at Reach CPA Inc (“Reach”) in March of 2022. Ms. Besse alleged that the dismissal was wrongful and brought a claim against her former employer through British Columbia’s Civil Resolution Tribunal (the “CRT”) stating that Reach owed her $1,371.60 in unpaid wages and $4,166.67 in severance pay. In response, Ms. Besse’s former company stated that she was terminated for just cause and thus, brought a counterclaim against her for a total of $2,603.07, alleging that she was guilty of time theft and therefore owed the company money.
Background:
In September of 2021, pursuant to an agreement between by Ms. Besse and Reach, Ms. Besse was permitted to work remotely. Approximately five months later, weekly meetings involving Ms. Besse and her manager were initiated as a result of concerns that she was underperforming and inefficient in her work. In late February, Reach installed TimeCamp, a time tracking software, onto Ms. Besse’s work computer.
Following this installation and another performance-related meeting, Reach became aware of an inaccurate timesheet entry recorded by Ms. Besse. This discovery prompted Reach to investigate the TimeCamp data collected from Ms. Besse’s computer between February and March of 2022.
Reach claimed that the timesheets as-recorded by Ms. Besse, and the software usage logs, as collected by TimeCamp, were inconsistent with one another, and that Ms. Besse had reported 50.76 hours of work time during which she had not been performing job-related duties. Ms. Besse declined to provide an explanation for the inconsistencies when the concerns were raised. Ms. Besse was terminated.
The Decision:
Ms. Besse argued that she was unable to properly utilize TimeCamp to have it differentiate between work and personal activity on her computer, and that it was her inability to properly grasp the function of the software that resulted in the inaccuracies in her recorded time. Despite her argument, the CRT found that the software was able to provide an accurate reflection of the time worked by Ms. Besse and distinguish between personal and work-related tasks.
Ms. Besse further argued that she was utilizing paper copies of documents to perform her work, but the CRT discredited this by reference to TimeCamp’s printer-tracking activity.
The CRT found that 50.76 hours were inaccurately recorded.
The CRT implemented the test for just cause to determine whether Ms. Besse’s alleged time theft justified her termination. The test considers whether misconduct by the employee has led to an “irreparable breakdown in the employment relationship.”[1] Based on the evidence presented to it, the CRT found that Ms. Besse had partaken in time theft and the associated dishonesty had the effect of creating an “irreparable breakdown in the employment relationship” such that Reach had just cause for termination.
The CRT held that Reach was entitled to $1,506.34 for the 50.76 unaccounted hours, and $1,096.73 for the unforgiven advance.
Takeaway:
Time-tracking software may, naturally, raise privacy concerns for employees who may not be aware of the extensive scope of activity that this type of software can capture. Reconciling this discomfort of ‘big brother’ with the necessity for employers to ensure productivity levels is no easy feat. Regardless, B.C. employees are guaranteed a level of privacy protection as British Columbia is one of Canada’s three provinces to have its own privacy legislation, the Personal Information Protection Act (“PIPA”), which is similar to its federal counterpart, the Personal Information Protection and Electronic Documents Act (PIPEDA). PIPA sets out the requirements for consent, notification, usage, disclosure, access to, and care of individuals’ personal information when handled by organizations.
In Ms. Besse’s case, the CRT accepted and relied on the accuracy of TimeCamp. Whether other decision-makers will rely on similar technology and whether this will encourage employers to increase the utilization of such software remains to be seen. As this is a CRT decision, it is not binding on the courts in this jurisdiction.
Nevertheless, a shift in the privacy landscape of the modern Canadian workplace has been evolving within Canadian court decisions even prior to the substantive increase in remote work that accompanied the COVID-19 pandemic.[2] The gradual but vast increase in the usage of technology within the modern workplace has brought about a greater need for the protection of personal information for employees, whether or not time tracking software is involved. This was considered in 2012 by the Supreme Court of Canada in R v. Cole where it recognized the importance of protecting the personal information of employees, even on technological platforms provided and owned by the employer on which personal use is permitted.[3]
Ultimately, while time tracking software may seem like an attractive option to employers when allowing employees to work remotely, it must be balanced against an employee’s right to privacy as protected under PIPA and through the Canadian court system.
Written by Lindsay Peretz with contribution from summer student Nicole Korac.
[1] Besse v. Reach CPA Inc., 2023 BCCRT 27 at para. 17.
[2] Emma Phillips, The Changing Dimensions of Privacy in the Workplace: Legal Rights and Labour Realities, 2015, 18 C.L.E.L.J. at 467 – 491.