Time theft is a well-recognized basis for termination of employment for just cause. However, if unlawful discrimination has occurred in the lead-up to termination of employment, even an employee who has committed time theft, may be entitled to compensation.
In Buckel v St. Joseph’s Healthcare Hamilton,[1] an employer’s flawed investigation and disregard for human rights issues led the Human Rights Tribunal of Ontario to award an employee general damages arising out of discrimination, even though the Tribunal declined to overturn the employer’s decision to terminate her employment on the basis of just cause.
What happened?
Ms. Buckel was employed as a secretary in the Psychiatry Department at St. Joseph’s Healthcare Hamilton. Through the use of timesheets, she was required to report to her manager her arrival and departure times, and times away from work. Her manager would then enter her information into the record-keeping system.
In October 2017, due to concerns about Buckel’s record of absenteeism, the Hospital commenced a workplace investigation, including an examination of payroll and attendance records. The Hospital directed Buckel to attend an investigation meeting; however, she was given only five minutes notice and no prior warning of an investigation into her attendance at work. During the meeting, Buckel was unable to provide an acceptable explanation for the issues raised. She was also not shown any of the evidence collected during the investigation.
Ultimately, the investigation identified the following issues which the Hospital suspected as time theft:
- Buckel appeared to arrive at work late or leave early, while being paid for the full day.
- On nine occasions, Buckel was paid for periods when the Hospital’s records showed her to be absent from work.
- There were instances of Buckel appearing to overstay her lunch break.
Immediately following the investigation meeting with her, the Hospital terminated Buckel’s employment for wilful misconduct and deliberate neglect of duties.
The Tribunal’s decision
The Tribunal found significant gaps in the investigation, which impacted the reliability of many of its findings:
- During the hearing, Buckel demonstrated multiple inaccuracies in the Hospital’s payroll records and timesheets, which occurred through no fault of her own.
- The investigation was unfair and unreasonable because Buckel was not provided an opportunity to identify deficiencies in the Hospital’s evidence. Had Buckel been given time to review her payroll and attendance records, she would have been able to identify certain instances where the errors found arose due to her manager’s failure to keep accurate records.
- The Hospital failed to interview Buckel’s former managers and colleagues, resulting in questionable findings of culpability.
All told, the Hospital’s tally of 164 alleged hours of time theft had been significantly overstated, in part, due to it treating legitimate disability-related absences, as unauthorized. These legitimate, disability-related, absences were therefore a factor in the Hospital’s decision to terminate Buckel’s employment.
Significantly, the Tribunal also found that the Hospital did not intend to discriminate and had legitimate, non-discriminatory, reasons for terminating Buckel’s employment. However, in the end, the Tribunal confirmed that even if termination is legally justifiable on the basis of just cause, and even if there was no discriminatory intent, if discrimination was a factor in the decision to terminate employment, this violates the Human Rights Code.
Buckel was awarded damages of $15,000 for injury to dignity, feelings and self-respect.
Lessons learned
While time theft is misconduct, almost invariably justifying dismissal, failure to adhere to fairness principles during a workplace investigation can lead to an employer being found liable, even to a dishonest employee. To avoid such liability, an employer should ensure its processes are fair and reasonable, including the following:
- Implement clear policies and procedures that address reporting and record-keeping for lateness and absenteeism.
- Regularly train staff on policies and procedures.
- Recognize a difference between culpable and non-culpable absenteeism.
- Ensure all requirements and efforts to accommodate are well-documented.
- Investigate a concern promptly and thoroughly, following fair procedures, including interviewing all witnesses with material knowledge of the facts.
- Ensure an employee is made aware of and given reasonable opportunity to respond to any allegation of misconduct.
Finally, some investigations can be handled internally, whereas others require the assistance of a skilled external investigator. When in doubt, consult with an experienced workplace lawyer.
To learn more and for assistance contact your Sherrard Kuzz LLP lawyer or your Sherrard Kuzz LLP lawyer or info@sherrardkuzz.com.
The information contained in this presentation/article is provided for general information purposes only and does not constitute legal or other professional advice, nor does accessing this information create a lawyer-client relationship. This presentation/article is current as of August 2025 and applies only to Ontario, Canada, or such other laws of Canada as expressly indicated. Information about the law is checked for legal accuracy as at the date the presentation/article is prepared but may become outdated as laws or policies change. For clarification or for legal or other professional assistance please contact Sherrard Kuzz LLP.
[1] 2024 HRTO 1324.
