Can Employees be Fired for Workplace Recordings?

Often for good reasons, many employees choose to have workplace recordings (particularly performance evaluations, workplace harassment investigations, or terminating meetings) without advising the employer or obtaining permission. A key reason is to protect themselves from an employer’s wrongdoing, or otherwise prove they were treated unfairly. As a result, many employers (and employees) find themselves wondering if this is lawful or unlawful under Ontario employment law rules.

From an employer’s perspective, all workplace meetings or conversations (especially those relating to an employee’s termination of employment) are intended to be kept private and not publicly disclosed. Among other things, the primary concern with surreptitious workplace recordings not only respecting the privacy of the employee involved, but from a broader perspective, there are potential legal and reputational risks that employers must consider. While the immediate goal of a termination meeting is to end an employment relationship in a professional and respectful manner, even the most well-handled meetings can be emotionally charged, and it is essential to ensure they remain confidential.

One of the main concerns is the potential for an employee to later use that secretly recorded meeting as evidence in an employment dispute, such as a wrongful dismissal claim or constructive dismissal claim. While the general rule has been for courts to use secret (or surreptitious) workplace recordings as evidence against an employee justifying a wrongful dismissal, there are a few cases where the courts have recently allowed them to support an employee’s workplace dispute against an employer.

Case in Point

In Teljeur v. Aurora Hotel Group, the case involved an employee with a secret workplace recording of a termination meeting. After the employee commenced a wrongful dismissal claim, the court reviewed the recording and, using a transcript, incorporated it into the decision to award punitive damages to the employee, as the content of the recording highlighted troubling aspects of the termination process.

John Teljeur began his role as the General Manager of Pinestone Resort & Conference Centre, a property managed by Aurora Hotel Group in Haliburton, Ontario, in October 2018. The resort includes both a conference centre and a golf course. At the time his employment was terminated, Mr. Teljeur’s annual salary was $72,500.

On December 6, 2021, two senior executives from Pinestone Resort met with Mr. Teljeur to inform him that his employment was being terminated without cause. During this meeting, Mr. Teljeur secretly recorded the conversation. A transcript of the recording was later presented at trial, which revealed the following exchange:

“The way we’re going to do it… you need 8 weeks’ severance, and we’ll also pay you for the rest of this week. You’re going back and forth this week, right? So, I’m not expecting you to do that for free, so that’ll also be compensated. I’m going to set your termination date for Friday, so you’ll still be paid for the full week, and then you’ll receive an additional 8 weeks of severance. It’s really about 9 weeks or 8.5 weeks total.”

Despite this promise, the employer only provided Mr. Teljeur with the minimum severance required under the Employment Standards Act, 2000 and after a significant delay, issued a cheque for only half of what had been initially promised in the termination meeting.

The transcript also revealed that the employer attempted to persuade Mr. Teljeur to falsely resign. During the termination discussion, he was advised that he could tell staff he had resigned three weeks earlier, which was not true. One of the executives remarked:

“You don’t have to resign. I’m just saying it’s better for you to do so. They’re offering for you to do that.”

At the time of his dismissal, Mr. Teljeur, who had been employed with the company for nearly three years, was 56 years old. He subsequently filed a claim for wrongful dismissal, seeking damages for both the wrongful termination itself and the manner in which it was carried out.

In his wrongful dismissal claim, the employee was successful in receiving an award of seven months’ pay in lieu of reasonable notice. However, the court also held that the employer acted in a manner that was “untruthful, misleading or unduly insensitive” due to the following “disturbing aspects” of the plaintiff’s termination, resulting in a breach of its duty of good faith and fair dealing. In doing so, the court took issue with the following actions of the employer:

Failure to Provide Written Notice of Termination: The employer did not provide the employee with written notice of termination, which was a violation of of section 54 of the Employment Standards Act, 2000 (which requires written notice for employees with more than three months of service). More so, the employee specifically requested it on at least three occasions, which the employer ignored.
Delay in Payment of Statutory Minimum Termination Entitlements: The employer did not provide the employee’s Employment Standards Act, 2000 entitlements within the required seven days after employment ended or by the employee’s next regular payday, as required by section 11(5) of the Employment Standards Act, 2000. This delay left the employee without financial support during the holiday season.
Failure to Reimburse Business Expenses: The employer failed to reimburse the employee $16,680 for incurred business expenses, which represented about 23% of the employee’s annual income. This placed a significant financial burden on the employee. Despite assurances that the payment would be made “before the next week or so” in the termination meeting, the employer had not made the reimbursement even by the time of the summary judgment motion, nearly a year later.
Failure to Provide Promised Severance: During the termination meeting, the employer assured the employee he would receive eight weeks of severance or additional compensation. However, the employer ultimately paid only the minimum required severance under the Employment Standards Act, 2000.
Encouraging Employee to Resign: The employer suggested to the employee that it would be “better off” for him to resign, which the court considered might have been the employer’s attempt to limit its exposure to a wrongful dismissal claim. Specifically, one of the senior executives told him: “You don’t have to resign. I’m saying it is better off for you to do it. They’re offering for you to do that.”

In finding that the employee was entitled aggravated damages to reflect the actual damages suffered he suffered and compensate him for mental distress beyond the normal distress and hurt feelings associated with being dismissed, the court relied on the employee’s evidence in the workplace recordings to find that the totality of the employer’s actions “added significant stress to his life on top of the stress he was experiencing as a result of being terminated.”

Conclusion

As this case reflects, the courts may sometimes rely on even surreptitious workplace recordings to fully scrutinize an employer’s conduct, particularly when it comes to termination of employment. If they determine an employer acted unfairly or in bad faith, such as intentional violations of the Ontario Employment Standards Act, 2000 or false representations or promises, they may award employees additional financial compensation called aggravated/moral damages.

For employers, it is important to be mindful of a few objectives to help limit such situations, such as having workplace policies that clearly set out expectations in terms of recording termination meetings, and ensuring all termination meetings are conducted in a sensitive and respectful manner.

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