Can an employer rely on information they acquire after termination to allege that there was just cause for dismissal? Yes.
Can an employer dismiss an employee for cause because they secretly recorded interactions at work? Yes.
Of course, the answer to both of these questions is more accurately: “sometimes”.
Just cause for dismissal: The “capital punishment of employment law”
Regular readers already know that the threshold for establishing just cause for dismissal – “the capital punishment of Employment Law”, as some courts refer to it, is high. That is true because of the harsh implications for the employee; just cause can deprive an employee of months or years of severance entitlement. As a result, there must be good reason to do so.
As I have discussed in previous posts and at length in my book, You’re Fired! Just Cause for Dismissal in Canada, an assessment of whether just cause exists involves not only proving misconduct, but also considering whether the employment relationship has been irreparably damaged, bearing in mind all relevant factors. Those relevant factors include things such as
- The length of service;
- Prior disciplinary history;
- The nature of the employee’s role and degree of trust required; and
- The employee’s response when confronted.
In many cases, courts and arbitrators conclude that while there may have been misconduct, it did not warrant summary dismissal, and some lesser form of disciplinary action would have been appropriate.
In most cases, an employer will become aware of misconduct and, hopefully with the advice of an Employment Lawyer, assess the situation in order to decide whether dismissal for cause is warranted. However, sometimes an employee is dismissed and, subsequently, the employer learns that they engaged in misconduct which may have warranted dismissal for cause.
The law is clear that an employer may invoke grounds for dismissal which it became aware of after the employee’s dismissal if the employer can show that:
- they did not have knowledge of the misconduct (or were not wilfully blind to it) at the time the employee was dismissed; and
- they did not expressly or implicitly condone it by omitting to take timely action.
The employer cannot revisit past transgressions of which it was aware, and cannot go digging for information that it could have found before if it tried. After-acquired cause refers to knowledge that the employer did not and could not reasonably have acquired before dismissal. That was the case in Shalagin v Mercer Celgar Limited Partnership, in which the British Columbia Supreme Court found that just cause for dismissal existed based largely on evidence discovered after the employee had been dismissed without cause.
Dismissal for secretly recording workplace interactions
We are often asked by individuals if they should record interactions at work. First, we always clarify that it is not unlawful to record a conversation as long as one party agrees, and that party can be the one doing the recording. In other words, it is not unlawful to record a conversation with your manager, but leaving your phone in a boardroom to record your manager’s meetings with other people would be.
That said, just because it is unlawful does not mean it is a good idea. In some cases, it can be; for example, if an employee is being harassed or abused, there may not be objective evidence without a recording.
In Shalagin, the former employee commenced a human rights complaint and, in the course of pursuing his case, produced over 100 recordings that he had surreptitiously made of interactions with co-workers and management in the workplace. took them over the top and rose to the level of just cause for dismissal.
The company subsequently successfully relied on the sheer volume of the recordings and the frequency with which he recorded interactions, as well as the fact that the recordings included personal information, to satisfy the court that there was a serious breach of trust and privacy. The court agreed that the employee had breached the code of conduct, the confidentiality policy, and his professional standards as an accountant.
Pith and substance
As I say many times in my book, it is not easy to establish just cause for dismissal, but “just cause is not a lost cause”. There are many cases every year in which courts or arbitrators find that it existed.
Sometimes, employers will only learn of information that could support a cause argument after dismissal; this is often the case when they retrieve the employee’s phone or laptop and review the information on it. Employers can rely on that information if they truly were not aware of it, and had not turned a blind eye to it before dismissal. This can make a for cause case even stronger, or transform a dismissal without cause into one for cause.
Employees should be very cautious when recording workplace interactions. While doing so can document issues of concern, in at least two cases that I know of, the fact that the employee was secretly recording people at work was used against them to establish just cause for dismissal.