Canadian HR Reporter

CANADIAN HR REPORTER JANUARY 2020 10 NEWS New payroll process not quite a match for workers at tile and terrazzo company Toronto employer's new pay system would have been more efficient, but it contradicted workplace rules in collective agreement and raised privacy concerns BY JEFFREY R. SMITH O ne Ontario company may have been a little too eager in adopting an electronic payroll system that was too intrusive and inconsis- tent with established workplace rules. York Marble Tile & Terrazzo is based in North York, Ont. Its traditional way of paying employ- ees was for people to complete timesheets on a weekly basis. e superintendent managed the payroll process and each week he travelled to various jobsites to col- lect the timesheets. However, the process was prob- lematic as the timesheets weren't always submitted at the same time, so it took the superintendent two days or more to gather them all, which was time he needed to spend on jobsites. Payroll software on cellphones e company decided it needed to find a more efficient way of managing payroll and found a digital timesheet application called Tsheets. Tsheets allows employees to electronically re- cord the time they start and end their workday by "clocking in" and "clocking out" with an application on a cellphone. e data from the app on the employee's phone is then sent to the Tsheets server through the cellphone's data or a Wi-Fi con- nection, which then passes it along to the employer. Employees are also able to send messages to the employer and the employer is able to set up notifi- cations to employees through the Tsheets app. e app can also track the lo- cation of an employee's cellphone through the phone's global posi- tioning system (GPS) technology and send the data to the Tsheets server and the employer while the employee is "clocked in" dur- ing the workday. is feature is activated by default unless the employer opts out. In this case, York Marble didn't opt out so Tsheets would track employees' locations while they were working. When an employee "clocked out" for the day, the app stopped sending GPS data. With Tsheets implemented, York Marble would be able to generate reports from the data that could specify information about the time spent on particular projects, per employee, overtime, breaks and unpaid time off. On Nov. 1, 2018, the company informed employees that it was implementing Tsheets effective Nov. 12. It provided information on the app and told them they would be required to download the app on their cellphones "as this is going to be the only way York Marble will be collecting timesheets from employees." e company noted that any employ- ees who didn't download the app and submit their hours that way would "only delay your processing of your payments." York Marble didn't think it would be a problem that employ- ees had to use their personal cell- phones to use Tsheets since some employees already communicated to their foreman with their per- sonal device. It would also be too costly to provide company cell- phones to employees. Once Tsheets was implement- ed, the superintendent spent sig- nificantly less time on the com- pany's payroll and had more time for other tasks. e company set up an alert through the app that reminded employees to "clock in" at the start of their shift — the alert showed up on employees' cellphone re- gardless of whether they were logged into the app or scheduled to work. Concerns about workplace policies, employee privacy Some employees who were aware that York Marble hadn't disabled the GPS tracking on Tsheets were concerned about the collection of their personal data. e union grieved the imple- mentation of Tsheets, arguing that York Marble's new timesheet process was inconsistent with the collective agreement's payroll article by unilaterally requiring employees to install a digital time- tracking app on their personal cellphones. e union pointed out that the collective agreement stipulated that employees should submit their timesheets by phone, email or fax "at the end of the busi- ness day on the Monday follow- ing the workweek for which the timesheet applies." By implementing Tsheets, the company was restricting the employee's ability to choose the method of submitting timesheets and forcing employees to submit them daily instead of weekly, said the union. In addition, the collective agreement stated that "use of per- sonal electronic devices, includ- ing but not limited to cellphone, pagers and music players, are not permitted during working hours on any project" — which meant using cellphones to clock in and out contradicted the cellphone ban during work hours. e union also argued that the new process was unreasonable, as York Marble could have achieved the objective of saving time on its payroll in a less intrusive way — without forcing employees to use personal devices or track their location — by enforcing the Monday deadline for timesheet submission more consistently. Labour relations board finds change unreasonable e Ontario Labour Relations Board agreed that York Marble's implementation of the Tsheets process was inconsistent with the collective agreement, which included a method of filing timesheets that the company negotiated with the union. e agreement listed the ways em- ployees could submit timesheets — by telephone, email or fax — and also required them to sign a copy upon receipt of their paycheques. e board also noted that the timesheet process was phrased so that it didn't include any possible methods to submit timesheets other than the three listed — Tsheets wasn't a stipulated meth- od, so using it for payroll was inconsistent with the payroll pro- cess as outlined by the collective agreement. On top of that, Tsheets was en- tirely electronic with no mecha- nism for electronic signatures, so it wasn't possible for employees to fulfil the requirement of providing signed copies of their timesheets when they received their pay- cheques, said the board. The board pointed out that cellphones were clearly prohib- ited during working hours on any project, but, in order to "clock out" on Tsheets, employees would have to use their cellphones dur- ing working hours. As a result, the procedure for using Tsheets was also inconsis- tent with workplace rules under the collective agreement. Overall, the board found that York Marble's implementation of the new payroll system was an unreasonable exercise of manage- ment rights because: • it required employees to use their personal cellphones for work-related purposes without compensation and forced em- ployees to own, carry and use their personal cellphones at work • it forced employees to use the data from their own cellphone plans or relocate to an area with Wi-Fi in order to "clock out" of their shifts • data on employees was stored, used and potentially shared with- out any information on how it was protected or used. "It is obvious there could be real privacy issues with allow- ing Tsheets (and possibly the employer) to having access with the data collected and controlled on personal cellphones," said the board, adding that York Marble had the option of deactivating the GPS tracking option but didn't do so. In addition, the board pointed out that sending notifications to employees' cellphones — regard- less of whether they were sched- uled to work — was a form of con- trol over personal cellphones that was unreasonable. The board determined that York Marble's unilateral imple- mentation of the Tsheets payroll system was unreasonable and violated its collective agreement. It agreed with the union that if the company's primary objective was to save time in processing payroll, it could have enforced the exist- ing methods and timelines for submitting timesheets outlined in the collective agreement, which would have saved time but been much less intrusive. For more information see: Brick and Allied Craft Union of Canada & Brick and Allied Craft Union of Canada, Local 31 v. Ter- razzo, 2019 CanLII 98862 (Ont. Lab. Rel. Bd.). Credit: joserpizarro (shutterstock) consequences of reinstatement on a day-to-day basis," said the court. "I can certainly see her opinion be- ing given more weight than others who would not otherwise have di- rect dealings with Mr. Kouridakis if he was to be reinstated." As for the possibility of rein- statement to another position, the court found that the code only authorized remedies of re- instatement to the position held before the unjust dismissal, not a different position. e court noted that Kouridakis' emailing of his bullying and harass- ment complaint to a CIBC execu- tive after the meeting with corpo- rate security was scheduled likely encouraged CIBC to terminate his employment after the meeting and "may have strengthened the arbi- trator's resolve" that the employ- ment relationship was no longer tenable. While CIBC could have handled the situation surrounding Kouridakis' termination better, it was clear that both sides contrib- uted to a negative employment environment, said the court. e court dismissed Kouridakis' appeal and upheld the arbitrator's decision that Kouridakis was un- justly dismissed but should receive severance compensation rather than reinstatement. e amount of the severance compensation was to be determined at a later hearing. For more information, see: • Kouridakis v. Canadian Impe- rial Bank of Commerce, 2019 FC 1226 (F.C.). Both sides contributed to negative environment ALBERTA < pg. 5

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