Secret Recording of Workplace Meetings was Cause for Termination
May 9, 2022
It is not a criminal act to record conversations where you have the consent of one of the parties, typically by the one who is doing the recording. However, we now have a case out of British Columbia finding, criminal or not, it was an invasion of privacy and was cause for the termination of the Employee’s employment.
The employee was a financial analyst. The employer had a code of conduct requiring the employee to conduct himself with honesty and integrity and to adhere to the highest ethical standards. The employer also had a confidentiality policy which required confidential information not be removed from the premises and that upon termination of employment, it be returned or destroyed.
The employee felt he was being mistreated and discriminated against by his manager. He recorded several one-on-one training sessions over a four-year period, over 100 training and safety meetings at which he often presented personally, and at least 30 one on one meetings with supervisors and human resources about compensation and recruitment.
The employee was terminated and filed an employment standards complaint, a human rights complaint and a civil action (the latter being the forum of this decision). The employee adduced the recordings in evidence in the various proceedings. In the civil action the employer took the position that the recordings constituted after-acquired cause for termination.
The employee admitted that he knew people would be uncomfortable if they knew they were being recorded and therefore he did not request permission to record.
The Court held that “surreptitious recording can cause material damage to the relationship of trust between the employee and employer”. The court noted that the recordings were not a single incident or momentary lapse in judgment and here resulted in a complete breakdown in trust in the employment relationship.
The Court did not accept that the employee needed to make the recordings to protect himself based on fear of discrimination or to ensure his compensation was appropriately calculated. In particular it wrote, “The Plaintiff cannot invoke an irrational concern to support the reasonableness of surreptitious recordings that would otherwise be treated as destroying the trust between the plaintiff, his colleagues, and his employer.” The court was particularly troubled by the “sheer volume of the recordings” and the fact that they captured “personal information about his subordinates and colleagues”.
The Court therefore concluded the recordings constituted just cause for termination and the employee’s claim was dismissed.
This case should stand as a warning to employees considering recording of conversations in the workplace. On the other hand, note-taking has never been found to be a privacy invasion nor grounds for termination for cause.
Shalagin v. Mercer Celgar Limited 2022 BCSC 112 (CanLll)
Expertise
Employment Law
