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Lights, Camera, Caution: Recording Interactions at Work

 

Alright, what I wanted to talk about today is really encourage people to be very cautious about recording their interactions at work.

Now the irony here is we always tell our clients that legal battles are not decided based upon truth, they’re decided based upon evidence, so the question is not what happened, it’s what can you prove? And sometimes we have the traditional he said she said, you know, particularly for incidents of harassment or sexual harassment, where there’s nothing in writing, there are no witnesses, and the victim may really have no other option but to record incidents. So sometimes it’s a good idea. In a time, though, when everybody’s walking around with a camera, video and audio recorder in their pocket, it’s really easy to do, and perhaps sometimes it’s too easy, because it’s tempting to record conversations when you really shouldn’t.

So I’m going to talk quickly about two recent cases, both of which involved employees who recorded conversations at work. The first was known as Shalagin and Mercer Celgar out of British Columbia. In that case Mr. Shalagin was initially dismissed on a without cause basis. After he was fired, he sort of attacked on all fronts, he brought a human rights complaint, an employment standards complaint, and a civil claim, he alleged he’d been terminated as a reprisal for raising concerns about his bonus, and the company had been dishonest about his bonus during the discovery process, which during a civil court action there’s a discovery process where you have to disclose all relevant documents in your possession which includes recordings, so Mr. Shalagin had to disclose the fact that he had made hundreds of secret recordings of conversations with other employees, both one-on-one and in group meetings, and included everything from business meetings to discussions about family issues with colleagues, and all these were in the recordings. And Mr. Shalagin didn’t offer a particularly compelling explanation for why he did this. At one point he tried to say that it was to help him learn English, that’s why he recorded the conversations. I don’t think the court was particularly persuaded by that.

So I’ll stop for a second and just mention that contrary to popular belief, it’s not illegal to record a conversation in Canada, and I think it’s different in the states, in Canada as long as one party to the conversation consents then it is lawful, it’s not unlawful, and that party can be you, so if I’m talking to Brian, I can record the conversation even without telling him, but what I can’t do is start the recorder and then leave it in the room with Brian and Frank and listen to what they have to say, that would be unlawful.

But in the Shalagin case the judge noted that legality is not the sole barometer, the question is whether the employee’s actions fundamentally ruptured the relationship. In that case the court was not particularly convinced that there was any reason to record these hundreds of conversations, and in fact found that he had irreparably damaged the relationship by doing that, which of course is a test for just cause for dismissal. So the irony of course is, he tried to use the recordings to bolster his case, they ended up completely torpedoing his case.

On the flip side we have got the case of Rooney and GSL Chevrolet Cadillac. As a Ferris Bueller fan I love the fact that the plaintiff’s name was Edward Rooney, but in this case he was successful, because he was let go, he believed he was, before he was let go, he thought he was being unfairly disciplined for various conduct, so he recorded conversations with his supervisor. The company alleged that those recordings had ruptured the relationship and was after acquired cause. The court didn’t agree with the company, the court found that by the time he was reporting them, his employer had suspended him without pay and he had reason to be concerned that he was being portrayed as a problem, and that he had good reason to start recording these incidents to basically defend himself. Even in that case though, what the judge said was that recording conversations in the workplace will often cause irreparable damage to the relationship of trust between the employee and the employer and be just cause for termination, so in that case Mr. Rooney was successful, but the judge did note that in many cases, if you record conversations at work, you’re actually not helping yourself, you’re hurting yourself.

So the bottom line here, just because you can easily record interactions at work doesn’t mean that you should, and you need to remember that if you commence a legal action you are going to be required to disclose all relevant documents, including recordings, so even if you make a recording and your lawyer tells you that it’s not going to help, in fact it’s going to hurt, you can’t just hide it, you’re going to have to disclose it, so be very, very cautious about recording, even though it is very easy to do.

That’s all for today.

As always we encourage you to get legal advice before you act, rather than trying to fix things later. So if you’re an employee considering recording incidents at work, or if you’re an employer dealing with an employee that has been, or is suspected of, recording things at work, please reach out to us and we’d be glad to talk to you and give you the advice you need.

Thanks for tuning in.

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