Ontario Court Upholds Termination of Employee Over Time Theft: Employment lawyer on HR Reporter

Interview Summary

An Ontario court has decided to uphold the termination of an employee by Fiera Foods Company due to time theft. The terminated employee sued for wrongful dismissal, claiming the investigation conducted by their employer was retaliatory as they had voiced concerns about health and safety and attempted to unionize.

Jeremy Herman, a Toronto employment lawyer and Associate at Samfiru Tumarkin LLP, joined the HR Reporter’s Jeffrey Smith to discuss the court’s decision and its impact on employee rights.

Interview Notes

• Honesty of the employee: Herman noted the dishonesty exhibited by the employee during the investigation impacted the court’s decision.”There’s an emphasis throughout the decision that the fact that the worker wasn’t forthcoming was an issue, and I think it just compounded the lack of trust that already existed due to the alleged time theft,” said Herman. “There’s a trust issue there, and then when the worker isn’t forthcoming about it, that’s generally going to seal the deal, so to speak, on the employer’s ability to rely on that to justify a termination for cause.”
• Terminating ‘for cause’: Herman clarified that while it is difficult to terminate an employee ‘for cause’, some actions can lead to a justifiable dismissal. “It was a pretty simple issue, using someone else’s timecard and engaging in time theft – it’s pretty clear just by the action itself that there was a willful aspect and it wasn’t just an error,” Herman explained. “That’s why it met that standard of the ESA, which we know from a history of other cases that it’s a very high standard employers are often unable to meet.”
• No bad faith by Fiera Foods: The employer conducted a thorough investigation and met all of its obligations. “Providing the employee with an opportunity to explain is key – if the worker provided an explanation that was satisfactory, then that’s one thing, but he didn’t, so that’s something to which the employer will be able to point to justify cause,” Herman said. “And that goes beyond the actual incident of time theft – how the investigation plays out and how forthcoming the employee is during the investigation, is also going to be material.”

Related Resources

For further insights and discussions related to employee rights, explore the following resource:

• Wrongful dismissals in Ontario