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Instructor
Jeffrey Vandespyker
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The relationship between employees and employers depends on a bond of trust and our courts have found this relationship is buttressed by a duty of good faith by each of these parties to the other. The act of secretly recording a conversation will necessarily erode that trust to such a degree that any continued employment relationship becomes strained, if not impossible.
It is on this ground that arbitrators in both British Columbia and Manitoba have in the past elected to not even admit such recordings into evidence. Even where admissibility in court is not at issue (because it will always be admissible in court), there can be grave consequences for the employee.
Termination for just cause, often referred to as the “capital punishment” of employment law, occurs when an employee’s actions erode the underlying bond of trust with the employer to such a degree that the employer has no choice but to end the relationship. In such terminations, the employee is not entitled to severance and, in some circumstances, can even be barred from being able to get employment insurance.
One of the issues courts will look as is whether an employee is justified in his actions to record the employer.
In the British Columbia case of Shalagin vs. Mercer Celgar Ltd., the court found that such surreptitious recordings amounted to just cause. However, in an even more recent case from Alberta, Rooney vs. GSL Chevrolet Cadillac Ltd., the court took a more nuanced view and just cause was not found. The court noted the employee’s action in recording conversations was justified because the employer “exerted its power over Mr. Rooney by imposing unilateral changes on his employment terms and disciplined him contrary to his terms of employment.”
In other words, the court found there was a valid reason for the recording of the conversation, suggesting that when a valid reason does not exist, termination for just cause would still be in the cards. The logical question is, of course, what is a valid reason, and this one of topics this webinar will address.
It is important to keep in mind that while termination for just cause is the worst possible outcome, it is not the only negative one. Employers throughout Canada are generally able to terminate employees without cause, and the knowledge that employees are stealthily recording conversations may persuade them to simply address the problem by ending that employment relationship.
If you are an employee who has been mistreated, harassed, forced into working conditions you never agreed to or subject to other conditions that might form a valid reason to record a conversation, you may be able to record it and use it to ensure your employer cannot get away with its actions.
The golden rule is one that generally helps all relationships, including employment ones: Treating your employees well, with respect and in good faith, is a sure-fire way to minimize the risk that surreptitious recordings are used against you.
The employer/employee relationship is getting more and more challenging especially since the onset of the Pandemic. Employers throughout North America have realized the importance of a qualified, trustworthy and hardworking employee more than ever before. Employees have realized they are more than just commodities and when unsatisfied, they are quick to leave their workplace and look for one that is more suitable to their needs. Many employees will take jobs for less money in order to relieve some of the stress places they endure at work.
However, some employees take things too far and decide to record conversations at their workplace, usually within the limits of the law, but sometimes outside of it.
Employers need to understand their rights when employees record these conversations and determine if the employee is worth keeping around.
Usually, the relationship of trust which exists between employer and employee has already eroded by the time of these recordings and often employers will terminate employee both for cause and without.
At times, when an employee has no justifiable reason for recording these conversations, and an employer terminates the employee for cause, a court may rule in favour of the employers. However, courts have made rulings on both sides of this issue and this webinar will help guide both employees and employers as to their rights and responsibilities upon termination.