Surreptitious Recording

Surreptitious Recording

In a time where there is more processing power in your back pocket than all of the combined computers that sent the first astronauts to the moon, recording everyday conversations secretly doesn’t require an elaborate setup, equipment or a wire; all that’s required for covert recording is simply the press of a button on a smartphone.

In the employment context, there are often employee monitoring technologies for proper time management, computer use, and team management.

The recent case of Shalagin v. Mercer Celgar, 2022 BCSC 112, is instructive that employees also have the ability to monitor and record their employers’ actions and conversations with relative ease, but this ease of surreptitious Recording recording may strike at the heart of the employer/employee relationship and result in a breakdown of trust leading to just cause dismissal.

It is important at the outset to note that in Canada, it is lawful to record conversations so long as one party to the conversation consents: Goldman v. R, 1979 CanLII 60, [1980] 1 S.C.R. 976; Criminal Code, R.S.C. 1985, c. C-46, s.184. 

However, simply because it is legal and not criminally prosecutable does not mean it is without consequences in the employment context, as seen in Shalagin.

In Shalagin, the Plaintiff had worked since 2010 as a financial analyst with Mercer. The Plaintiff also held a CPA designation. Mr. Shalagin, while having no written employment contract, was found to be bound by his employer’s Code of Business Conduct, Ethics, and Confidentiality. 

Mr. Shalagin’s lawsuit came about from a wrongful dismissal claim. Mr. Shalagin had disagreements with his employer over his treatment by his supervisor, his upcoming bonus, and human rights concerns. The employer terminated Mr. Shalagin on a without cause basis on March 25, 2020.

During the discovery process and the related human rights proceedings, it came to light that Mr. Shalagin had taken recordings of interactions with fellow employees, supervisors, and human resources personnel, dating back to 2010. The participants in the recordings other than Mr. Shalagin were unaware they were being recorded.

Mr. Shalagin alleged that the earlier recordings were to assist him in learning English but admitted that the later recordings of interactions with supervisors and human resource staff were to have a record of interaction relating to potential bonus entitlement and as proof of discriminatory conduct.

The Court noted that “just cause” for dismissal was “behaviour that is seriously incompatible with the employee’s duties. It is conduct which goes to the root of the contract and fundamentally strikes at the heart of the employment relationship.”

The Court also emphasized the principle of proportionality for disciplinary measures and that summary dismissal constitutes capital punishment in employment law.

The Court noted that misconduct that is discovered post-termination constituting just cause should be approached with caution.

The Court determined in this case that the question is whether the employee’s actions fundamentally ruptured the relationship, such that the mutual trust between the parties is broken.

Upon review of the facts and relevant case law, the Court held that surreptitious recording can cause material damage to the relationship of trust between employee and employer and did so in the present case.

In a nutshell, the Court found there was no legitimate basis for Mr. Shalagin to make the recordings, that the recordings destroyed the trust between him, his colleagues, and his employer, and that if his arguments were accepted, it might encourage employees who feel mistreated at work to routinely start secretly recording colleagues.

The volume of recordings, and the fact that several of the recordings were made of a highly personal nature unrelated to work, were factors that weighed against the plaintiff in the case.

What Shalagin demonstrates is that while secretly recording conversations may not be illegal, it may, depending on the circumstances, strike at the heart of the employee/employer relationship of mutual trust and be grounds for just cause termination.

In order to prevent these issues from becoming a problem, as a best practice, employers should set clear expectations and policies surrounding recording conversations, meetings, etc. and make clear that recording fellow employees, supervisors or managers without consent is a matter for progressive discipline.

Do You Have Questions?

If you wish to update your policy guidelines to include language regarding employee/employer recordings, Spraggs Law can help.