Who’s responsible for tracking hours – the employee or employer?

Tribunal looks at company's claim it provided all payroll records 'in a timely way'

Who’s responsible for tracking hours – the employee or employer?

Under Canadian law, employers are required to keep an accurate record of the hours worked by their employees.

For employers, it helps with payroll and budgeting and ensures compliance with federal and provincial labour laws. For employees, it provides a clear record of the hours worked and helps to ensure that they are paid for their labour.

In this case, an employer was faulted because it could not provide a record of hours worked by the employee when faced with a complaint.

Complaint after termination

The company operates a cardiology practice in Vancouver, with a sole director and officer. The employee was the company’s medical office assistant.

In December 2020, the company decided to terminate the employee’s contract, and four days later, she filed a complaint to the Director of Employment Standards (DES).

The adjudicative delegate of the director ruled on the complaint and issued a determination with written reasons on June 2022. She found the company violated relevant regulations and ordered it to pay the employee in wages and interest. 

The delegate also ordered the company to pay two administrative penalties for its violations. The deadline for appealing the determination was June 27, 2022.

Determination appealed

On December 13, 2022, the company appealed the determination to the Employment Standards Tribunal (EST) and asked the latter to extend the appeal period deadline from June 27, 2022, to December 13, 2022. 

In a written submission for the company, the director cited an error of law and a breach of natural justice supporting the extension request.

The EST examined the request and found the company had fallen short of paying all wages owed to the employee. Regulations require an employer to “pay all wages owing to an employee within 48 hours after the employer terminates the employment.” Consequently, the Adjudicative Delegate imposed an administrative penalty for this violation.

The delegate also imposed a second administrative penalty because the company failed to produce the necessary documents.

The company was required to produce a record of the hours worked by the employee on each day of her employment. The regulations state that “a person ordered to provide records to the DES must do so as and when required.” Such failure made them liable for another penalty.

Regarding extension of claims, HRD previously reported on the peculiar case of a worker who filed his claim 24 years after retirement.

In another case, a worker was fired for leaving work to go to his child’s daycare centre. The employer cited poor quality of work and failure to record work hours as grounds for termination.

Was the failure ‘excusable’?

The company said that it provided the DES “with all the payroll records he had in a timely way,” but “was unable to produce a full record of the hours the employee worked each day during her employment.”

“The employee never submitted her hours,” the company argued.

The tribunal, however, did not accept the employer’s reason.

“Even if it is true that the employee failed to submit her hours worked, this does not necessarily excuse the company from its obligations to keep those records under the law, and provide them to the DES under regulations,” the British Columbia Employment Standards Tribunal said in its decision.

“Compliance was the company’s responsibility, not the responsibility of the employee,” it added.

Thus, it noted the company’s non-compliance as a sufficient ground to reject its request to extend its appeal.

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