Secret Recordings, Part 2: Still a Bad Idea

By Fiona Anderson.Fiona Anderson

Earlier this year, I blogged about whether it was legal to record conversations without letting the person being recorded know the recording was happening. Yes, it’s legal, since only one person in the conversation needs to consent, and that would be the person doing the recording. (If the person doing the recording is not in the room, then it would not be legal.

However, I also warned that courts frown upon surreptitiously recording conversations at work, since this can amount to a fundamental breach of the employment relationship. In other words, if an employer was the recorder, the employee could claim constructive dismissal, though those weren’t the facts in the BC case (Fredrickson) I discussed. It involved an employee who had been dismissed and then offered her job back. Employees have a duty to mitigate their losses after they are fired – and returning to their old job would satisfy that duty. But the court in Fredrickson concluded that the employee was entitled to refuse her old job since her employer had secretly recorded a conversation with her, ruining the employment relationship.

Since that post, I have come across another 2017 case, this one out of Manitoba, that also considered the use of recordings – Hart v. Parrish & Heimbecker, Limited. There, Mr. Hart was being investigated as a result of various complaints about his behaviour to subordinates. While being interviewed by management as part of the investigation, Mr. Hart recorded the meetings by placing his work cell phone on the table in record mode.

Mr. Hart was eventually dismissed for his behaviour towards his co-workers. He tried to rely on the recordings to show that he had never been told that he would be dismissed if his behaviour did not improve. The company argued that the fact that Mr. Hart secretly recorded conversations using the company phone amounted to after-acquired cause (that is, just cause for dismissal that the employer learned about after the employee had already been fired).

The court found sufficient cause for termination based on the behavioural complaints and did not decide whether recording the conversations also amounted to cause. However, it did say that using the company’s phone to make the recordings was inappropriate and a definite breach of the obligations of confidentiality and privacy Mr. Hart owed his employer.

More proof that courts don’t like secret recordings in the workplace. So, think twice before you hit record.

To hear Erin Brandt and Richard Johnson’s take on this issue in the context of the 2019 Jody Wilson-Raybould scandal, watch their vlog below.

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