A muskrat trapper, who has been in post since 1994, is under investigation due to low productivity and excessive time spent on administrative tasks. When reports emerged that his company car was frequently parked at his home during working hours, the employer launched an investigation. Black box data from the car was compared with the time records over a period of more than half a year. This revealed a discrepancy of 94 hours and 11 minutes. The employer concluded that this constituted 'time theft' and summarily dismissed the employee for time fraud.
With immediate effect
The court has rejected the employer’s approach on several grounds. The dismissal was not issued 'without delay', as the employer dragged its feet for months over analysing the black box data. Furthermore, the black box is the wrong tool for the job. It is intended for monitoring vehicle use, not as a digital time clock. The employer should have questioned the employee first. Many of the allegations in the letter of dismissal relate to poor performance, for which a performance improvement plan would be more appropriate. Nor has any deliberate fraud been proven. The discrepancy in working hours alone is insufficient, particularly in view of personal and medical circumstances and difficulties with the digital recording system.
Fraud?
The alternative claim for termination of the employment contract is also dismissed. There is insufficient evidence of fraud. The alleged strained working relationship with a former team leader is now irrelevant, as the former team leader has since retired. The Court of Appeal considers that the ground of ‘d’ (poor performance) is particularly unfounded and notes that, following a performance improvement programme, the employee is once again performing satisfactorily. He has rediscovered his enjoyment of his work and realises that he wishes to continue in this role until he retires.