Date Published: 3 January 2023
Summary Written by: Jeff Buchan
Summary Written by: Ed Matei
You may want to think twice before surreptitiously recording conversations in the workplace. While it is not illegal to record a conversation in the workplace so long as one party to the conversation consents, it may still be cause for the termination of employment. This is because, in the employee-employer relationship, there is an implied duty of good faith owed by each party to the other. Termination for just cause can arise where this duty is violated to such an extent that the employer has no choice but to end the relationship. Secretly recording conversations can certainly lead to such a breakdown in trust in the workplace as courts and arbitrators have found across British Columbia and Alberta. However, the caselaw indicates that where there is a valid reason for the recording, i.e., the employee has been mistreated or has been subject to a unilateral change to her/his employment, secret recordings may not justify a just cause termination. Instead, they can be used to help the employee hold the employer accountable for their actions. It is not always clear what a court will consider to be a “valid reason” for recording and thus, it is always a good idea to get legal advice.