October 11, 2023
Author: Dylan Snowdon
The BC Court of Appeal has confirmed that surreptitious recordings of conversations with supervisors and others at work can create just cause for termination of employment.
In Shalagin v. Mercer Celgar Limited Partnership, 2023 BCCA 373 the Court affirmed the trial decision from 2022 where the trial judge found that the employee’s actions ruptured the relationship, such that the mutual trust that would have been necessary to continue the employment relationship was broken. Although just cause was raised after the employment was terminated, the Court confirmed that the clandestine nature of the recording meant the employer had no ability to discover their existence until after termination.
Recording Conversations Under the Criminal Code and Employment Termination Just Cause Criteria
Under the Criminal Code making such recordings is not prohibited. What is prohibited is the making of recordings by someone who is not a participant in the conversation as set out in the Interception of Communications section of the Code; wire-tapping, for example. Therefore, an employee recording conversations that they are a participant in, would not create the elements of a crime.
A finding of just cause for termination of employment is based on the circumstances surrounding the alleged misconduct and the degree of misconduct. The Court will look at all the circumstances, the impact and potential impact of the misconduct, the nature of the particular employment contract, and the status of the employee.
Court Decision on Employee Recordings and the Ethical Dimensions of Privacy in the Workplace
In this case, the Court found that the employee had no legitimate reasons to make the recordings, he knew making the recordings was unethical and would make his colleagues uncomfortable, and he recorded conversations containing personal details about his subordinates and colleagues that had nothing to do with the workplace. Although the employee was not found to have acted maliciously, making the recordings was either unnecessary or ill-founded and the Court determined that the employee knew making the recordings was ethically wrong, despite not being illegal.
The Court in this case also referred to the Supreme Court of Canada’s decision in Sherman Estate v. Donovan where the Court recognized a public policy reason to treat privacy issues seriously, noting that privacy is a fundamental value in Canadian society that should be protected.