Quite often, employment lawyers in Ontario are called to assist employees who feel they are clearly being targeted by their boss or manager at work, and fear they will soon suffer a termination of their employment. In those cases, it is a natural instinct for people to gather evidence to prove their suspicion, and to rely on such evidence to pursue a wrongful dismissal claim.
What does that “evidence” look like in a workplace where an employee feels the “writing is on the wall” and they will soon be fired, or in a workplace where the employee is constantly bullied and harassed? Sometimes, employees get creative and use a device to secretly record conversations with their boss, manager or supervisor, such as in a disciplinary meeting, performance evaluation or during a phone call. The aim, of course, is to “trap” the perpetrator into saying or doing something that clearly proves the employee’s suspicions (or worst yet, is illegal or amounts to a reprisal).
But is it legal to surreptitiously record your boss at work?
One the one hand, under the Criminal Code, it is not criminally unlawful to secretly record conversations, as long as one of the parties in the conversation is aware and consents. That said, no one is legally permitted to intercept other peoples’ private communication (i.e., secretly record or listen to conversations in which they are not themselves actually involved).
However, just because it is not criminally unlawful to secretly record (or “bug”) conversations where one of the parties consents does not mean employees are legally permitted to secretly record work conversations. In fact, there have been several cases where the courts have concluded such conduct allows employers to terminate an employee’s job on the basis of just cause.
As discussed previously in this blog, an employer can terminate employment in one of two ways: (i) termination of employment with cause (which means a good reason to fire an employee “on the spot” without prior notice and without providing a financial severance package), or (ii) termination of employment without cause (which means any reason or no reason at all, as long as there is no discrimination involved, and the employer provides the employee with prior notice of termination, or a financial severance package). Generally, employers have to decide whether to terminate with cause or without cause at the time of termination, not after. The only exception is where an employee’s misconduct on their job is only discovered after the termination (called “after-acquired cause”).
Secretly Recording Conversations With Your Boss at Work? It May Result in Just Cause for Dismissal
In a recent case in British Columbia called Shalagin v Mercer Celgar Limited, a court considered a situation where an employee secretly recorded hundreds of conversations with colleagues at work over the course of years leading up to his termination of employment (despite the employer’s confidentiality policy required all employees not use or disclose any confidential information without the company’s permission). One of the main reasons for the secret recordings was the employee’s attempt to prove his employer was not being truthful in calculating his annual bonus pay.
Ultimately, following a dispute regarding the bonus pay, the employer decided to terminate the employee’s employment without cause. However, it was only during the course of legal proceedings that the the employer discovered the employee’s secret conversations. At that point, the employer argued it had after-acquired cause to terminate the employee’s job based on the secret conversations. At trial, the judge agreed with the employer: the secretly recorded conversations were unethical and enough to justify the employer firing the employee for just cause.
Among other things, the court stated that even it is technically lawful to record conversations as long as one party (the recorder) consents, “legality is not the sole barometer. The question is whether the employee’s actions fundamentally ruptured the relationship…” Under employment law, “surreptitious recording can cause material damage to the relationship of trust between employee and employer.”
While the employee tried to justify his secret recordings as a way to “protect” himself from being treated unfairly by the employer, including discrimination and being “under-compensation. However, the court disagreed. While the employee’s records were not malicious, they were “unnecessary and ill-founded… and designed to benefit him alone. In fact, the court held that there was no evidence to justify the employee’s “irrational concerns,” as he could have simply discussed his issues regarding bonus pay directly with his manager.
Lessons
Under employment law, employees may not always be within their legal rights to secretly record workplace conversations with a boss, manager or other co-workers without them knowing they are being recorded. In fact, the courts could very well conclude that secret recordings can permanently damage (or lead to a complete breakdown) in the trust and confidence an employer requires in an employee to continue the employment relationship. In such a case, an employee may be unable to succeed in a wrongful dismissal claim against the employer.
As this case illustrates, in some circumstances, secret workplace recordings could justify a just cause termination. However, as with any other situation where employers wish to terminate employment, the standard to justify a termination for just cause is high, and employers would be prudent to consult with an employment lawyer before alleging just cause for termination. Otherwise, an employer may have to deal with a wrongful dismissal claim and potentially provide an employee with a financial severance package.
Contact Bune Law, Toronto Employment Lawyer
If you were recently wrongfully dismissed from your employment, then you should talk to an experienced employment lawyer in Toronto, who will help you determine whether your employment has been ended lawfully. To discuss your wrongful termination and see if you have a case to obtain a termination severance package, please call Bune Law, Toronto employment lawyer, today at 647-822-5492.
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