In our August 2022 newsletter, we wrote about a decision of the Supreme Court of British Columbia in which an employee secretly recorded conversations with co-workers and was dismissed for cause because his actions fundamentally ruptured the mutual trust with his employer.1 Recently, the Court of King’s Bench of Alberta revisited the topic of secret workplace recordings but came to an opposite conclusion, finding the employer did not have just cause to dismiss the employee.2
Why did the court find just cause in one case but not the other? In short, in the second decision the court found the employment relationship had already been breached by the employer by way of a constructive dismissal, thus the employee was justified in secretly recording his supervisors.
The Alberta ruling, that sometimes it’s okay to secretly record workplace conversations, may have muddied the waters for employers looking for direction. That said, there are lessons to be learned about the factors an employer should consider before disciplining an employee who secretly presses the record button.
The first decision
Readers may recall, the employee was upset about his bonus and complained, unsuccessfully, to his employer. Ultimately, his employment was terminated without cause and he sued alleging wrongful dismissal. During the litigation, the employer discovered that, while employed, the employee secretly recorded numerous work-related discussions, including one-on-one training sessions, more than 100 safety meetings, at least 30 one-on-one meetings between himself and management about compensation and recruitment, and several with co-workers that captured sensitive personal information unrelated to the workplace. Upon learning of the secret recordings, the employer changed its legal position to assert after-acquired cause for termination on the basis that, had it known of the secret recordings at the time of termination, it would have terminated the employee for cause.
At the outset of his employment, the employee had signed a code of business conduct and ethics which required him to be honest and ethical in dealing with other employees, customers, suppliers, vendors, and third parties.
The court found in favour of the employer because of three key factors: (i) the significant volume of secret recordings, (ii) the lengthy time over which they took place, and (iii) the private communications between co-workers that had been captured without consent. The court also noted that permitting such conduct could encourage other employees who felt mistreated at work to secretly record co-workers, which would have a negative impact particularly given the growing recognition of privacy considerations in Canada.
The second decision
For 20 years, the employee worked as an electrical, air conditioning, and vehicle drivability technician, paid on a piecework basis (not time).
As a result of a corporate restructuring, the employee’s workload and compensation were considerably reduced. The employee raised concerns with his employer, and when the matter could not be resolved, the employee’s work performance began to decline to the point he was suspended without pay three times: first for “squealing tires” in the shop, then for arguing with a supervisor, and later for arguing with a fellow employee.
Suspicious that he was being falsely portrayed as a “problem employee”, the employee began to secretly record discussions with his supervisors regarding his suspensions and the changes to his compensation. Ultimately, he alleged he had been constructively dismissed, and he sued his employer. When the employer learned of the recordings, it alleged after-acquired cause.
The trial judge confirmed that secret recordings in the workplace can amount to just cause for termination if they irreparably damage the trust between employee and employer. However, in this case the secret recordings did not amount to just cause for dismissal for two primary reasons: (i) the employer did not have a code of conduct or policy that might address workplace recordings, and (ii) at the time of the recordings the employment relationship had already broken down because the employee had been constructively dismissed. In the circumstances, the court found the employee was “justified” in making the secret recordings of conversations:
[The employee’s] actions in recording conversations with his supervisors were justified because [the employer] exerted its power over [the employee] by imposing unilateral changes on his employment terms and disciplined him contrary to his terms of employment.3
Lessons for employers
As these two decisions demonstrate, whether a secret recording in the workplace will amount to just cause to terminate is highly dependent on the circumstances. Relevant factors include:
- the existence of a workplace policy addressing privacy
- the number of recordings
- the period of time over which the recordings were made
- the reason(s) for the recordings
- the content of the recordings, including whether private conversations were captured, unrelated to the workplace
- whether the employee had signed or was aware of a relevant workplace policy
- the state of the employment relationship at the time the recordings were made
Particularly the last point – the state of the employment relationship – can be difficult to discern in real time when emotions may be running high and the employer does not have the benefit of time and perspective. This is when it’s particularly important to seek the assistance of experienced employment counsel to help navigate the waters.
To learn more and for assistance contact any member of the team at Sherrard Kuzz LLP
1Shalagin v Mercer Celgar Limited Partnership, 2022 BCSC 112.
2Rooney v GSL Chevrolet Cadillac, 2022 ABKB 813.
3Ibid, at para 91.
