Secretly Recording Workplace Conversations Can Result in Termination

April 22, 2022

In recent years, there has been an increase in the prevalence of employees secretly recording conversations in the workplace. While it is not unlawful for a conversation to be recorded when only one person is aware that the recording is being taken, the undisclosed recording of conversations can raise privacy concerns. The recent decision of the Supreme Court of British Columbia in Shalagin v Mercer Celgar Limited Partnership, 2022 BCSC 112 serves as a reminder that just because the act of secretly recording conversations is not unlawful, that does not mean the same action cannot be cause for termination. Further, when an employee’s secret recording of workplace conversations is discovered after an employee’s dismissal, employers may be able to avoid liability for the termination by establishing after-acquired cause for termination.

Background

The Plaintiff was employed by Mercer Celgar Limited Partnership (“Mercer”) as a financial analyst for ten years. The Plaintiff was a Certified Professional Account (CPA) and subject to professional obligations. The Plaintiff was terminated without cause after a dispute regarding his bonus entitlement. The Plaintiff was provided with the amounts owing to him under the Employment Standards Act, RSBC 1996, c 113. Following the termination, the Plaintiff filed an Employment Standards Act complaint, a human rights complaint, and a wrongful dismissal action.

During the various legal proceedings, the Plaintiff revealed that he had taken secret recordings of workplace interactions while he was employed with Mercer. The recordings were taken over the course of several years during a variety of meetings with coworkers and management. The content of the discussions captured by the Plaintiff included, among other things, personal details disclosed by the Plaintiff’s coworkers.

After-Acquired Cause

Upon learning of the secret recordings, Mercer changed their position with respect to the Plaintiff’s termination. Mercer asserted that the secret recordings formed the basis of after-acquired cause for the Plaintiff’s termination. The secret nature of the recordings meant that Mercer had no ability to discover their existence prior to the Plaintiff’s termination.

Secret Recordings as Cause for Termination

In determining whether the secret recordings constituted cause for termination, the Court noted that the legality of the conduct was not the sole factor in determining whether the conduct was appropriate in the workplace. The key question that the Court considered was whether the Plaintiff’s actions had fundamentally ruptured the employment relationship in such a way that the mutual trust between the parties was irrevocably broken.

The Court found that the Plaintiff’s conduct constituted just cause based on the following facts:

  • secretly recording interactions in the workplace can cause material damage to the relationship of trust between the employee and the employer;
  • the recordings captured very sensitive conversations which contained personal information about other employees;
  • the Plaintiff knew that his actions were ethically wrong as he acknowledged that his coworkers would be uncomfortable with the recordings;
  • the Plaintiff proposed justifications for making the recordings were to safeguard himself against discrimination and financial improprieties; however, there was no evidence to support the allegations of discrimination of financial improprieties;
  • the Plaintiff had secretly recorded more than 130 interactions in the workplace over a period of approximately four years;
  • other employees felt violated by the secret recordings of their personal information; and
  • from a public policy perspective, secret recordings ought to be discouraged in the workplace. Otherwise, employees who feel mistreated at work may routinely start secretly recording their co-workers.

The Court considered the following two mitigating factors, although these were ultimately found to be insufficient to overturn Mercer’s position that the conduct constituted just cause for termination:

  • the Plaintiff did not publish the recordings or use them for his own benefit outside of legal proceedings; and
  • the Plaintiff was not acting in malice when making the recordings.

Key Takeaways for Employers

This case reinforces that an employer may rely on after-acquired cause for termination where facts are discovered, after a termination without cause, that are sufficiently serious to warrant cause for termination. In order to successfully invoke after-acquired cause to justify a termination, the employer must demonstrate:

  1. that it did not have knowledge of the misconduct, and was not willfully blind to it, at the time the employee was terminated;
  2. that it did not expressly or implicitly condone the misconduct by failing to take timely action;
  3. the conduct is sufficiently serious to irreparably damage the employment relationship.

The case also reinforces that secret recordings of interactions in the workplace may constitute just cause for termination. However, as in every case, the surrounding context must be taken into consideration. Employers should be aware that secret recordings will not always constitute just cause for termination. Additionally, employers should ensure that policies are in place that clearly establish that secret recordings of workplace interactions are prohibited.

This article was written with the assistance of Dawson Harrison, an articled clerk working at Cox & Palmer.

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