The firing of an accountant by a B.C. pulp and paper mill for making secret recordings was justified, the B.C. Court of Appeal has ruled, even though the employer didn't know about the recordings until the employee sued the company for wrongful dismissal.
In a summary of the case, Shalagin v. Mercer Celgar Limited Partnership, Guy-Etienne Richard and Dianne Rideout of Cassels law firm, write:
“This decision emphasizes the importance that the court places on the privacy rights of individuals and employees and serves as a reminder that an employee’s actions, especially those that infringe upon trust and privacy, can indeed constitute just cause for termination.”
The case centres on a certified professional accountant, Roman Shalagin, who worked for Mercer Celgar Ltd., which owns a pulp and papermill in Castlegar, B.C.
Shalagin was fired in 2020 without cause. He filed a wrongful dismissal suit against the company with the BC Supreme Court.
Interestingly, it was only during that wrongful dismissal trial that Mercer Celgar learned that Shalagin had made “hundreds of surreptitious recordings in the workplace” over a ten-year period.
“The recordings included recordings of one-on-one sessions, meetings with managers and human resources personnel, toolbox meetings, as well as conversations with colleagues,” Richard and Rideout write.
After learning about the secret recordings during the wrongful dismissal suit, the employer changed its pleadings from dismissal without cause to dismissal with “after-acquired” cause.
The company argued that the recordings "demonstrated a character of untrustworthiness that was incompatible with continued employment and constituted after-acquired cause for the plaintiff’s dismissal," Richard and Rideout write.
And because the recordings were done in secret, the trial judge allowed the "after-acquired" argument to stand.
“The trial judge concluded that the plaintiff’s conduct in making the recordings undermined the relationship of trust between the plaintiff and the employer and constituted just cause for termination,” Richard and Rideout write.
In making the ruling, the judge said the dismissal was justified because the employee knew that making the recordings was “ethically wrong,” contrary to CPA professional standards, and that there was no legitimate reason for making them. Ultimately, the recordings infringed the privacy of all who were recorded.
The employee appealed the decision to the BC Court of Appeal, but the Appeal Court upheld the lower court’s ruling.
“While each case is unique and must be evaluated on its own merits, the decision supports that making surreptitious recordings in the workplace may constitute just cause for termination,” Richard and Rideout conclude.
“Finally, this case also confirms that in the appropriate circumstances, pre-termination misconduct which could not have reasonably been discovered during the employment relationship may provide a basis for asserting after-acquired cause.”
