Smartphones and voice recording apps make recording conversations easy. Employees may be tempted to create a record of a performance review or salary negotiation, but surreptitiously recording conversations at work breaches trust and privacy.
According to a recent court case, it may also constitute cause for termination.
In Shalagin vs. Mercer Celgar, 2022 BCSC 112, the court considered the case of an employee who was terminated without cause after a disagreement over his bonus. He filed a human rights complaint and a wrongful dismissal action. In the course of litigation, he revealed that he had been recording conversations at work for several years, including training sessions, safety meetings, and “at least 30” meetings with supervisors and human resources. He said he made the recordings for two purposes: to help him learn English and because the meetings were “related to his rights.”
When Mercer Celgar learned about the recordings, it asserted that was just cause to terminate his employment.
The court agreed with the employee that it is legal to record a conversation as long as one party consents. The question was therefore whether doing so “fundamentally ruptured the relationship, such that the mutual trust between the parties is broken.” The employee admitted he had kept the recordings a secret because he knew his colleagues would be uncomfortable. The court accepted that the recordings were not malicious, but also accepted his co-workers felt “violated.” In the absence of any real justification for the recordings, the employee’s conduct justified terminating his employment for cause.
As is typical, this case rests on a particular set of facts, and employers should examine the circumstances before imposing discipline or terminating employees who record workplace interactions. It was significant in the Shalagin case that there was no justification for the recordings. The result may be different if an employee is recording conversations because of real concerns about bullying or harassment as those recordings may be evidence. Disciplining an employee in those circumstances could be retaliatory.
In New Westminster vs. IBEW, 2021 Can LII 7391, two employees had a conversation in a change room at work. A third employee overheard their conversation, became concerned and recorded it on his cellphone. One of the employees appeared to be making threats. Neither employee consented to having their conversation recorded. The recording was provided to the employer; unfortunately, it was poor quality and difficult to hear. In its investigation, the employer relied on witness statements rather than the recording. The employee making threats was terminated from his employment. The union grieved his termination.
At the hearing, the union argued it was discriminatory not to also discipline the employee who recorded the conversation without permission. The arbitrator decided it was “inappropriate” to record colleagues in a workplace, but also found the employee acted as a whistleblower. He said the employee “could not be faulted” for bringing forward safety concerns and that if he had been disciplined for making the recording, WorkSafeBC could have viewed it as retaliatory.
Employers should consider whether recordings are being made for a purpose related to safety. If so they could be accepted as evidence by WorkSafeBC or workplace investigators. For example, in City of Calgary and CUPE Local 37, 2018 CanLII 53482, an employee recorded incidents of sexual harassment on her cellphone. When she offered to play them for the human resources employee investigating the allegations, he refused to listen to them and said she would have to email them to him.
He submitted a report stating the allegations were unsubstantiated without hearing the recordings. The arbitrator expressed concern that the investigator “simply ignored first-hand evidence of conversations” in a “she said/he said situation” and said, “any potentially corroborating evidence should have been pursued.”
There was no suggestion that the employee had been wrong to record the conversations; rather, she won a large award in damages. •
Pamela Costanzo is an associate at Roper Greyell, practising in all areas of workplace law with a focus on workplace investigations and labour arbitrations.
