Smoking Gun or Poisoned Chalice? Employee Use of Secret Recordings at Work

As we have written in an earlier article, a relatively common question employment lawyers receive (from both employees and employers) is whether it is lawful to secretly record conversations at work. Individuals may be motivated to take this step for a number of reasons, such as trying to capture evidence of misconduct, or to safeguard against allegations arising from a contentious meeting.

While it is legal to secretly record a conversation in Canada, provided you are a direct participant in the conversation (i.e., you cannot lawfully leave a recording device somewhere to record conversations between other persons), perhaps a better question is whether it is a prudent decision to do so.

A recent decision from the Supreme Court of British Columbia highlights the inherent risk that may be associated with employees making secret recordings at work. In Shalagin v. Mercer Celgar Limited, the plaintiff was dismissed from his employment on a without cause basis. The defendant decided to end the relationship in response to what they perceived to be a threat of litigation made by the plaintiff in the context of a bonus calculation dispute. In dismissing the plaintiff, the defendant issued statutory amounts owing under applicable employment standards legislation.

Following his dismissal from the employment, the plaintiff filed a complaint against the defendant under the Employment Standards Act, commenced a human rights application, and brought a proceeding for wrongful dismissal before the Supreme Court of British Columbia.

In the course of litigation, the parties attended examination for discovery. The plaintiff disclosed at this time that he had taken many secret recordings during his employment. This included recording training sessions between 2010 and 2014, over 100 safety meetings, and at least 30 one-on-one meetings with representatives of the defendant.

Also, during examination for discovery, the plaintiff admitted that the purpose of recording interactions with his supervisors and human resources was “to create a record of interactions that I thought might relate to my rights, such as conversations about my contractual entitlement to a bonus and conversations related to discriminatory or bullying treatment of me or colleagues.” Essentially, the plaintiff believed the recordings may serve as the proverbial smoking gun to prove a legal claim at a later date.

Having become aware of the plaintiff’s extensive secret recordings and suspecting that the plaintiff may have improperly accessed internal bonus information, the defendant asserted after-acquired cause for dismissal. In effect, the defendant sought to rely on new information (of which it was unaware at the time of dismissal) to demonstrate an irreparable breach of trust, thus reliving it of any payment obligations to the plaintiff.

At trial, the court accepted that the defendant had after-acquired cause to terminate the plaintiff’s employment. In reaching this conclusion, the court considered the plaintiff’s secret recordings and noted that while it is lawful to record conversations to which one is a party, legality is not the sole barometer. The question is whether the employee’s actions fundamentally rupture the mutual trust necessary for ongoing employment.

The court further made the following specific observations with respect to the surreptitious recordings (at paragraph 71 of the decision):

I accept that the plaintiff was not acting with malice in making the recordings and that this is a mitigating factor. However, the fact that his stated bases for the recordings were all unnecessary or ill-founded, and several were designed to benefit him alone, weighs on the other side of the ledger. Likewise, the fact that the recordings captured personal information from his subordinates and colleagues and, thus, could not have supported his alleged purposes in any case, also weighs against his position.

I accept that the fact that the plaintiff did not publish the recordings and did not seek to make use of them for his own benefit outside of the ongoing legal proceedings is a mitigating factor as well. However, on the other side of the ledger, the sheer volume of recordings, and the length over which they occurred, generally offsets this factor.

…

Although allegations of after-acquired grounds for dismissal must be carefully examined, this is not the type of case where the fact of the grounds being discovered after dismissal carries particular weight. The clandestine nature of the recordings necessarily meant Mercer had no real ability to discover their existence until after Termination.

The court ultimately determined that the defendant had after-acquired cause to dismiss due, in large part, to the significant volume of secret recordings (made over a prolonged period), which were designed to benefit the plaintiff and needlessly captured personal information about various colleagues and subordinates.

In light of the preceding, employees (and employer representatives) should think carefully before choosing to secretly record conversations in the workplace to which they are privy. As noted in Shalagin, legality is not the sole barometer. Taking such action may undermine the parties’ trust relationship and render ongoing employment untenable.

In assessing the appropriateness of such recordings, individuals may be guided by the court’s findings in Shalagin. In particular, due consideration should be given to: the purpose of the recording; whether the act is guided by malicious intent; whether it captures others’ personal information; whether the recordings are published; the volume (or number) of recordings; the duration over which the recordings are made; and their clandestine nature. Employees and employers are best advised to seek legal advice before starting down this path. While the hope may be such recordings will help, there is a real risk they may end up doing more harm than good.

Vey Willetts LLP is an Ottawa-based employment and labour law boutique that provides timely and cost-effective legal advice to help employees and employers resolve workplace issues in the National Capital Region and across Ontario. To speak with an employment lawyer, contact us at: 613-238-4430 or info@vwlawyers.ca