A father recently called the Employment Law Show about his daughter, who had worked at a retail outlet for just under a year.
Things had been going well. She had recently been promoted to manager and had taken on a lot of responsibility before the company hired a general manager.
Then, the following week, she was fired.
The company accused her of “time theft” and said that was serious enough to terminate her without severance.
But does an allegation of time theft automatically mean an employer can fire you for cause and pay you nothing?
Absolutely not.
‘Time theft’ does not automatically mean cause
Employers sometimes treat the words “time theft” as though the discussion is over.
It isn’t.
Termination for cause is extremely difficult for an employer to establish. The employee normally has to have done something so serious that the employment relationship can no longer continue, or there has to be a history of misconduct that the company properly addressed before finally ending the relationship.
Doing something wrong, making a mistake or breaking a workplace rule is not necessarily enough.
And simply putting “time theft” in a termination letter does not make the allegation true or automatically eliminate an employee’s severance rights.
READ MORE: Employer fired you ‘for cause’ in Ontario? 4 things you must do
The employer has to prove what happened
If your employer fires you for cause, you do not have to prove that you are innocent before you can claim severance.
The employer has to prove the misconduct it is relying on.
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In this employee’s case, I would want to know exactly what the company says happened. What does it mean by “time theft”? What evidence does it have? How serious was the alleged conduct? Was it deliberate? Had it happened before? Had the company ever spoken to her about it?
Those details matter.
There are serious cases where an employee deliberately claims pay for substantial time they did not work. But there are also much less serious situations that an employer may describe using the same loaded phrase.
Those are very different cases.
Spending too much time on social media could be misconduct — but then what?
Consider an employee who spends too much time scrolling through social media during working hours.
Can the employer have a problem with that? Of course.
But that does not mean the normal response is to jump immediately to termination for cause.
I would expect the employer to have clear expectations, make sure employees understand them and address the problem when it happens. Tell the employee the behaviour is unacceptable. Give a warning and an opportunity to correct it.
If the problem continues, further discipline may be appropriate. Eventually, repeated misconduct after clear warnings can become much more serious.
But going from zero to a for-cause termination over one relatively minor incident is exactly the type of situation that can lead to a wrongful dismissal.
READ MORE: He was fired for job hunting — could his boss withhold severance?
Some misconduct can justify immediate termination
None of this means employees can ignore their working hours.
There are levels of misconduct. Deliberately claiming significant amounts of time you did not work, falsifying records or engaging in serious dishonesty can put your employment in jeopardy.
The point is that every allegation has to be examined in context.
Was it intentional? How serious was it? How often did it happen? Did the employee understand the rules? Were warnings given?
That is why I tell employees that the devil is in the details.
The words “time theft” sound dramatic. The actual facts are what matter.
She had worked there for less than a year — but that doesn’t mean no severance
There is another important part of this caller’s question.
His daughter had worked for the retailer for just under a year. Some employees hear that and assume the severance at stake must be tiny.
Don’t make that assumption.
Length of service is only one factor used to assess full severance. An employee’s age, position and the availability of similar work can also matter, along with the terms of the employment contract.
The full amount that employment lawyers at my firm can obtain can be as much as 24 months’ pay.
This employee had also recently moved into a management role.
Without reviewing her circumstances and employment agreement, I would not put a number on what she could be owed. But being a short-service employee does not automatically mean being entitled to nothing. In fact, you could be owed more compensation than you realize.
READ MORE: Fired during probation? You may still be owed severance
Don’t let the words ‘for cause’ end the conversation
In the vast majority of situations where people come to me after being told they were fired for cause, I look beyond the label.
What actually happened? What can the employer prove? How serious was it? Were there previous warnings? Was the employee ever given a chance to fix the problem?
Those questions can tell a very different story from the termination letter.
If cause can’t be established, the employee is owed their full severance.
That is the important lesson here.
An accusation of time theft does not automatically allow an employer to keep your severance. If you are fired for cause, have the allegation, your employment contract and the circumstances of your termination reviewed by an employment lawyer at Samfiru Tumarkin LLP before accepting the company’s conclusion.
