Employment lawyers always stress the importance of documentation in employee matters. With the increasing use of technology, both employers and employees are now often turning to technological recordings to document meetings, discussions and agreements. Although it is true that recordings can be a useful tool to accurately capture a meeting, making recordings is not without risk by using either a phone, a recorder or any recording tool. Employers and employees need to consider what happens when both parties are not aware they are being recorded. Even if the recording is secret, as long as the recorder is a participant in the meeting secretly recording the conversation is not illegal. However a recent decision from the Manitoba courts suggests this conduct may not be a good idea. In this recent decision, the court considered the impact of an employee having secretly recorded his employer in the context of a wrongful dismissal.
In this case, the plaintiff sued his former employer for wrongful dismissal damages as the plaintiff argued that that just cause was not proven. In the course of the litigation the plaintiff revealed – much to the surprise of the employer – that he had been recording conversations between himself and senior management. The recordings were admitted into evidence and used during the litigation. Ultimately, the judge upheld the termination for cause based on four complaints that were filed during the plaintiff’s employment – and, the judge also commented on the appropriateness of the secret recordings.
During trial, the employer argued that the secret recordings should be considered misconduct. The judge agreed with the employer and stated that the plaintiff’s inappropriate secret recordings amounted to a breach of confidentiality and privacy obligations to the employer. The judge did not rely on the secret recordings to uphold the just cause dismissal; but, the strong condemnation of the behaviour suggests that in future decisions that secret recordings could be a factor supporting a just cause termination.
As technology becomes increasingly relied upon in the employment context it will be important to exercise caution when recordings are being made in the workplace. Although in this case the employee had made the secret recording, whether or not a recording can be made is a common question from employers. As a best practice, employers should ask and obtain consent before any recordings are made. Furthermore, in the event that an employee makes a secret recording, an employer will be better positioned to rely on this conduct as supporting a termination if there are clear expectations and policies in the workplace about recording conversations. If faced with an employee making secret recordings, employers should be prepared to issue corrective action if and when appropriate. The lawyers at CC Partners are experienced in navigating discipline and privacy issues in employment law.