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To Record or Not to Record

Just Cause

You have probably heard of the Omarosa / Trump story by now. Put simply, reality TV star and former White House special assistant Omarosa Manigault Newman surreptitiously recorded conversations between President Trump and Chief of Staff John Kelly. While we do not know how the recordings were captured, this does raise questions about whether employees can – and more importantly, whether they should – record conversations in their workplace.

So what’s the state of the law on this topic in Ontario?

We are often asked by our employee clients whether they can record conversations in their workplace, such as conversations between themselves and their manager or supervisor, without the latter’s knowledge. Whether an employee can legally record a conversation in their workplace depends mostly on criminal and privacy laws, not employment laws. While I do not have expertise in either criminal law or privacy law, in Canada, the general principle of “one party consent” applies. It is not contrary to the Criminal Code to record conversations that you are a part of, since as a party to the conversation, you can consent to the recording, but it is contrary to the Criminal Code to record conversations that you are not a part of. This means that an employee can record a conversation between herself and a co-worker or her employer, as long as she is also a participant in the conversation.

However, there is a big difference between whether an employee can do so, and whether they should do so.

In some instances, it might make sense to record such a conversation, such as a disciplinary meeting; this could potentially serve as evidence if the employee were to pursue a claim against the employer later on. Yet, many employers may have workplace policies prohibiting such conduct, or it may be contrary to the culture of the organization if an employee secretly records conversations in the workplace. Such conduct can suggest a lack of trust, which can destroy the employment relationship.

If an employer discovers that an employee is secretly recording conversations around the workplace, the employer may decide to dismiss the employee.

In a recent decision from Manitoba, Hart v Parrish & Heimbecker, Limited, the plaintiff was dismissed for cause after a series of four staff complaints were made against him. After the third complaint, the plaintiff began to secretly record his meetings with management by placing his company issued cell phone in record mode on the table. While he was successful in having his secret recordings entered into evidence at trial, it seemed to have backfired.

The Court held that the staff complaints amounted to just cause for dismissal. The employer also argued that the plaintiff’s conduct in secretly recording conversations in the workplace should be considered after-acquired cause for dismissal. The Court agreed with the employer in disapproving the employee’s conduct in surreptitiously recording such conversations. However, the Court did not comment on whether such conduct would amount to just cause for dismissal since just cause had already been established. The Court stated as follows:

[97] 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…

[98] The misuse of his cell phone was also a breach of his personal code of conduct…

[99] This evidence was considered by me as a factor in determining whether the defendant had just cause for dismissal.  However, it is unnecessary for me to decide whether the plaintiff’s use of his cell phone amounts to just cause for dismissal in this case.  The plaintiff’s misconduct, as noted above, was relied upon by the defendant at the time of dismissal, and in my view, that provides just cause for dismissal in the circumstances of this case.” [Emphasis added]

This decision should serve as a warning to all employees who are thinking of secretly recording any conversations in the workplace, even if doing so would be technically legal. Are there any workplace policies which prevent you from doing so? How would the employer react if they found out? How would a Judge view such conduct? In some cases, where the recordings can provide evidence of harassment that would otherwise be unprovable, recording the interactions can be quite strategic. However, the case above is a good example of a situation where recording interactions at work can be frowned upon and come back to haunt the party doing the recording. Just because you can does not mean you should.

If you are an employee with any questions about your rights and entitlements in the workplace, you can contact us. Similarly, if you are an employer with concerns about your obligations, you can reach out to us for advice.

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