A common question employment lawyers are asked (by both employees and employers) is whether it is legal to make secret recordings while at work. A variety of circumstances may provide the motive for such action. An employee concerned they are being bullied may want to record proof of harassing comments made to them. Likewise, a supervisor may wish to secretly record the contents of a disciplinary meeting to safeguard themselves against future allegations of what was said.
In Canada, it is legal to make a secret recording of a conversation so long as you are a participant. It is not legal (and a breach of s. 184 of the Criminal Code of Canada) to secretly record conversations to which you are not a party. Thus, in both scenarios described above, the bullied employee and the concerned supervisor would be entitled to record their interactions with other workers.
While it may be legal to surreptitiously record your own workplace conversations, it is another question altogether as to whether it is a good idea. Canadian courts have acknowledged time and again that trust is at the heart of the employment relationship. As an employee, having co-workers or management learn that you are secretly recording your conversations with them may lead to valid feelings of betrayal and animosity. Employers too need to be cautious as to the use of secret recordings. If employees feel they are constantly under surveillance and not trusted by management, both workplace productivity and moral may suffer.
There is a surprising dearth of case law about the practical consequences of making secret recordings at the workplace. One recent decision from Manitoba, Hart v. Parrish & Heimbecker, Limited, however, provides strong evidence as to why parties may wish to think twice before engaging in such conduct.
In this case, the Plaintiff employee Mark Hart was dismissed for cause following a series of four (4) staff complaints related to his yelling at colleagues and bullying behaviour. After the third complaint, Hart began to secretly record his meetings with management by placing his company issued cell phone on table tops while in record mode. At no point did Hart inform others that he was recording conversations.
At trial, Hart was successful in having his secret recordings entered into evidence. His intention was evidentially to use the recordings to undermine the position of the company. If so, the attempt failed. Instead, after reviewing the four complaints, the Court held that each was valid and, when viewed collectively, provided just cause for Hart’s dismissal from employment.
Of particular interest is that the employer argued that the secret recordings made by Hart, in addition to the four staff complaints, should also be considered misconduct. The Court agreed and stated:
The plaintiff’s inappropriate use of his cell phone in secretly recording meetings with his superiors does amount to a breach of his confidentiality and privacy obligations to the defendant. The plaintiff admitted on examination for discovery that he knew a breach of the confidentiality obligations could result in termination.
The misuse of his cell phone was also a breach of his personal code of conduct that he prepared as a result of his meetings with Stone Ridge Consulting. In conducting the contextual analysis and assessing the severity of the misconduct, the plaintiff did not disclose the recordings to third parties outside of the defendant other than to his legal counsel and for the purpose of these proceedings. [emphasis added]
The Court ultimately declined to explain what, if any, impact the secret recordings would have made on the outcome of the case. That said, it is clear from the decision that Hart’s use of secret recordings was heavily disapproved of by the Court.
The decision in Hart should serve as a strong warning to anyone considering making secret recordings at the workplace. Before creating such recordings, be sure to think carefully about the necessity of the action and check whether any workplace policies may be engaged. For Hart, his recordings were found by the Court to breach his duty of confidentiality to the employer and a personal code of conduct he created as part workplace discipline pre-termination. Both these factors served to place Hart’s recordings in ill regard by the Court.
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