The consequences of secretly recording in the workplace

By Howard Levitt and Eduard Matei

Legality doesn’t necessarily equate to recording as being a good idea and it may be cause for discharge

Picture this. Last year, Jeff was told during his annual review by his manager that he was doing a great job, yet he was informed a short time later that, unfortunately, he would not be receiving a bonus for the year. This year, Jeff decides to surreptitiously record his glowing annual review in an attempt to prevent that from happening again.

Unfortunately, this plan can end up backfiring and costing Jeff not just his bonus, but his job, severance and even the ability to collect employment insurance.

Legal or illegal?

Many televised American legal dramas focus on whether recording someone without their knowledge is legal. This varies from state to state, but north of the border, the laws are consistent across each province and known as a “one-party consent” system.

To put it simply, if one party to the conversation is aware of and consents to the recording, it is not illegal. But if, for example, you record a conversation that you are not a part of, between two or more other people, the recording is not only illegal, but criminal.

Returning to Jeff’s conundrum, he concludes he is part of the conversation during his annual review and is on the right side of the law in recording his conversation with his boss. Unfortunately, the low bar of whether something is legal under the Criminal Code does not necessarily equate to it being a good idea and it may be cause for his discharge.

The consequences

The relationship between employees and employers depends on a bond of trust and our courts have found this relationship is buttressed by a duty of good faith by each of these parties to the other. The act of secretly recording a conversation will necessarily erode that trust to such a degree that any continued employment relationship becomes strained, if not impossible.

It is on this ground that arbitrators in both British Columbia and Manitoba have in the past elected to not even admit such recordings into evidence. Even where admissibility in court is not at issue (because it will always be admissible in court), there can be grave consequences for the employee.

Termination for just cause, often referred to as the “capital punishment” of employment law, occurs when an employee’s actions erode the underlying bond of trust with the employer to such a degree that the employer has no choice but to end the relationship. In such terminations, the employee is not entitled to severance and, in some circumstances, can even be barred from being able to get employment insurance.

In the British Columbia case of Shalagin vs. Mercer Celgar Ltd., the court found that such surreptitious recordings amounted to just cause. However, in an even more recent case from Alberta, Rooney vs. GSL Chevrolet Cadillac Ltd., the court took a more nuanced view and just cause was not found. The court noted the employee’s action in recording conversations was justified because the employer “exerted its power over Mr. Rooney by imposing unilateral changes on his employment terms and disciplined him contrary to his terms of employment.”

In other words, the court found there was a valid reason for the recording of the conversation, suggesting that when a valid reason does not exist, termination for just cause would still be in the cards.

What is a valid reason? Unfortunately, that is much more complex and requires a competent employment lawyer’s opinion, armed with all the factual considerations of the specific context. Jeff’s circumstance of using such recordings to justify a large bonus would be unlikely to reach that threshold.

It is important to keep in mind that while termination for just cause is the worst possible outcome, it is not the only negative one. Employers throughout Canada are generally able to terminate employees without cause, and the knowledge that employees are stealthily recording conversations may persuade them to simply address the problem by ending that employment relationship (though in this case, the employee’s rights to severance and employment insurance would remain intact).

Returning to Jeff’s conundrum, if he thinks the employer’s decision to deny him a bonus is based on grounds that are prohibited (for example, race, sexual orientation or reprisal for pointing out health and safety issues), he may well be protected in recording a conversation that reveals those things. However, he should still seek legal help before electing to rely on it to get a better idea of what consequences may follow.

Takeaways for employees

If you are an employee who has been mistreated, harassed, forced into working conditions you never agreed to or subject to other conditions that might form a valid reason to record a conversation, you may be able to record it and use it to ensure your employer cannot get away with its actions.

However, be aware that such recordings have a habit of causing an enormous schism in the employment relationship and may well cause it to end, and, in the most unfortunate circumstances, create a significant loss to you. Navigating these waters is often not a simple, straightforward process, and will generally benefit from legal advice.

Takeaways for employers

The golden rule is one that generally helps all relationships, including employment ones: Treating your employees well, with respect and in good faith, is a sure-fire way to minimize the risk that surreptitious recordings are used against you.

If you find out that one of your employees has taken to covertly recording conversations, you will need to address this problem. You have a broad range of possible options, from a discussion with the employee about their reasons for doing so, and working together to mend the relationship, to terminating the relationship with cause.

Pulling the trigger too quickly on termination for cause may cause bigger problems if the employee’s reason for recording was valid. But doing nothing and condoning the employee’s actions to continue such recordings may slowly and painfully poison the relationship, and prevent you from being able to terminate them later for just cause on this basis.

The right answer depends entirely on the context and how you want the matter to ultimately resolve.

Takeaways for Jeff

Jeff should be very careful about using any secret recording as leverage in his salary negotiations, and should reach out to an employment lawyer for advice before doing anything else.