Recorded workplace conversations can breach trust

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Unhappy workers sometimes record a workplace conversation to prove they are being mistreated, harassed, or face discrimination. And in Canada, recorded conversations don’t violate the Criminal Code if they have the consent of one of the parties involved.

A disgruntled worker who is involved in the conversation can “consent” to the recording. There’s no need to get consent from anyone else.

But there are limits. The British Columbia case of Shalagin v. Mercer Celgar Limited Partnership is an example of workplace recordings that cross the line and support an employer’s right to terminate the employee for cause.

(Illustration: istock)

Shalagin began working for Mercer on Jan. 6, 2010.  During his time with the company, he felt that he was being discriminated against based on his country of origin, which was Russia.

Once promoted, Shalagin became eligible for a manager’s incentive bonus based on personal and company performance. And the first such bonus was to be determined in the spring of 2020.

While reviewing a former employee’s documents to determine what could be shredded, however, he came across information about his chances for promotion as well as information about bonuses that were paid in previous years.

In March 2020, before the 2019 bonuses were announced, Shalagin met with human resources to talk about his bonus and appeared upset about the way it would be calculated — and disagreed that the payment should be based in part on his personal performance. When he raised the same concerns in another meeting with a supervisor, the supervisor began to suspect that he may have known about the amount of the bonus he was going to receive, even though this wasn’t public knowledge.

After the meetings, Shalagin wrote human resources and his supervisor, challenging the formula used to determine bonuses, and said he was open to resolving the issue without a lawsuit. In response to the threat of litigation, he was terminated without cause, two days after being paid a 2019 bonus of $6,925.

He responded by filing a wrongful dismissal suit, claiming his supervisor was dishonest about the bonus payment, was rude, abrupt, and dismissive, and that he was terminated as a reprisal for raising concerns about his bonus payment. It then came to light that, while employed, he secretly recorded several one-on-one training sessions that took place between 2010 to 2014, more than 100 ‘Toolbox Talk’ and safety meetings, and more than 30 one-on-one meetings with supervisors and HR personnel about compensation.  

Shalagin said he recorded the training and Toolbox meetings to help him with his English, and recorded the meetings with HR and supervisors to create a record of conversations about the bonus as well as his concerns about discriminatory or bullying treatment. In these meetings, information about other employees was disclosed, and in one case, his supervisor revealed personal family information, all of which was recorded.

Cause for termination

Based on the number of secret recordings discovered after his termination, Mercer took the position that it had cause for the termination.

The court focused on the surreptitious recordings and whether they went to the root of Shalagin’s contract, and fundamentally struck at the employment relationship. While making the recording was legal, that was not the sole consideration. The question was whether his actions fundamentally ruptured the business relationship, breaking the mutual trust.

The court ruled that Mercer established cause for Shalagin’s termination, based on the surreptitious recordings.  He knew his fellow employees would be uncomfortable with the recordings but continued to make them. And there was no evidence to support a legitimate fear of discrimination, despite his suggestions otherwise.

He didn’t act with malice and didn’t publish the recordings or use them for his own benefit outside of legal proceedings, the court said. However, the sheer volume of recordings, and the length of time over which they were made, offset those factors.

With today’s technology, recording conversations has never been easier. An employee who records a workplace conversation may not be breaking the law, but they may very well be breaching the trust that is fundamental to the employment relationship, putting their future at great risk. 

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Carole McAfee Wallace is a partner at Gardiner Roberts LLP, and can be reached at 416-203-9551. This column is intended for information purposes only and does not constitute legal advice.

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