A Recent Court Case Explores Whether Secretly Recording at Work Is Enough for “Just Cause” Dismissal
With smartphones making it easy to record conversations at the click of a button, it’s no surprise that secret recordings are becoming more common in workplaces. But can they be grounds for firing someone? A 2024 Alberta court decision, Wan v. H&R Block Canada Inc., tackles this increasingly relevant issue and sheds light on the legal concept of after-acquired cause – when employers discover misconduct after a termination and try to justify the dismissal in hindsight.
This case is a timely reminder for employers and employees alike to understand their rights and obligations when it comes to privacy, conduct, and termination in the workplace. For anyone navigating similar challenges, consulting a Toronto employment lawyer or wrongful dismissal lawyer is essential.
The Facts Behind the Termination
The plaintiff, a former employee of H&R Block Canada Inc., was fired for cause due to allegedly sharing confidential information at a conference. However, during the ensuing wrongful dismissal lawsuit, the employer introduced a new justification: that the employee had secretly recorded multiple workplace meetings without informing or obtaining consent from others.
This previously unknown conduct was presented as after-acquired cause – a legal argument made after the termination occurred, based on evidence discovered later. The employer filed for summary dismissal, hoping to end the claim without a full trial. But the court refused, ruling that the facts were too complex to be resolved without hearing from witnesses and assessing broader context.
What Is After-Acquired Cause?
In employment law, after-acquired cause refers to an employer’s ability to justify a dismissal based on misconduct that was uncovered after the fact. However, the standard to prove it is high. Courts must look at not only what the employee did, but why they did it – and whether the misconduct truly undermines the employment relationship.
In this case, the employer relied on the employee’s covert recordings to support their argument for dismissal. These recordings came to light during litigation, not at the time of termination.
If you’re an employee facing this kind of situation, or an employer seeking clarity, speaking with an employment contract review lawyer or constructive dismissal lawyer can help you evaluate your position.
Previous Cases on Recording at Work
The court looked to two earlier decisions to better understand how workplace recordings are treated in Canadian law. In the first one, the employee’s secret recordings were seen as reasonable because of an extreme power imbalance and hostile work environment. The recordings were considered a protective measure. In the second court decision, the court ruled that the employee’s recordings were unethical and inappropriate, as they captured irrelevant and sensitive personal data. This justified the employee’s termination.
These cases show that the legality of recording in the workplace depends heavily on context – such as the employee’s motives and the nature of the recordings.
Key Points from the Judge
The court’s decision to deny summary dismissal in the Wan case was based on several crucial observations:
1. No Clear Violation of Company Policy
The company’s internal code of conduct didn’t explicitly ban recordings. Without a clear rule, it was harder to argue that the employee knowingly breached workplace expectations.
2. Legal Gray Area
Recording someone without their knowledge might feel wrong—but it’s not automatically illegal. The judge emphasized that the recordings had to be considered in light of the specific workplace circumstances and whether the employee had a valid reason.
3. Motivation and Workplace Climate
The judge found the situation to be highly fact-specific. The employee’s intent, workplace pressures, and past interactions needed to be explored through testimony—not just written evidence.
4. Advice to Record from a Superior
Interestingly, a former president of the company had previously suggested that the employee consider recording a difficult colleague. This added another layer of complexity, weakening the employer’s position that the recordings were entirely inappropriate.
Why the Court Ordered a Full Trial
Because of the many grey areas—such as unclear policy, the employee’s motives, and mixed messages from management—the court ruled that a full trial was necessary. Summary dismissal would not have allowed for a proper examination of the facts or assessment of witness credibility.
For employees dealing with termination in unclear or evolving circumstances, especially where new allegations emerge after the fact, it’s vital to seek advice from a wrongful dismissal lawyer or constructive dismissal lawyer to ensure your rights are protected.
What Employers Should Learn from This
– Set Clear Expectations
Employers should develop and enforce written policies that specifically address the recording of conversations or meetings in the workplace. This helps avoid ambiguity and strengthens legal arguments in the event of future disputes.
– Consider the Full Picture
When dealing with potential misconduct, it’s critical to evaluate all surrounding circumstances. A rigid approach can backfire if the employee’s actions were driven by reasonable concerns, such as harassment or unfair treatment.
– Privacy Is Not Always Clear-Cut
Not all unauthorized recordings are equal. If recordings are made to safeguard the employee or document workplace abuse, a court may be less inclined to view them as a fireable offense.
If you’re an employer uncertain about how to manage a similar situation—or you’ve recently dismissed someone and discovered new issues afterward—it’s best to consult with a Toronto employment lawyer before making assumptions or escalating the matter.
Implications for Employees: Know Where You Stand
For employees, this case is a reminder that actions taken to protect yourself – such as secretly recording conversations – can sometimes help your case, but they can also complicate it. If you are considering this kind of step, or if you have already been terminated and are facing after-acquired allegations, get support from a legal professional.
You may also want to negotiate your severance package if you have been dismissed and suspect the reasons given are unclear or based on later claims. A qualified employment contract review lawyer can assess whether you are entitled to more than you’ve been offered.
Final Thoughts: Context Is Everything in Workplace Terminations
The Wan v. H&R Block decision illustrates that in employment law, there are very few hard rules. Whether secret recordings justify termination depends on the motivation, the policy framework, the power dynamics in the workplace, and the actions of both employer and employee.
If you are dealing with complex employment issues – especially involving misconduct allegations, unclear policies, or post-dismissal justifications – consulting a Toronto employment lawyer is a smart move. Whether you’re looking to fight back, protect yourself, or negotiate a fair severance package, having the right legal support is essential.
Call Toronto Employment Lawyer Now
It is important for an employee (or an employee) to obtain a legal consultation before taking any action that could affect the situation at workplace. Sezar has experience advocating for both employers and employees, which allows him to anticipate the other side’s arguments and develop an effective strategy, including termination of employment.
If you are looking for a wrongful dismissal lawyer in Toronto, call us today at 647-822-5492 for a case evaluation with an experienced employment lawyer.
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