By Howard Levitt and Eduard Matei
Legality doesn’t necessarily equate to recording as being a good idea and it may be cause for discharge
Unfortunately, this plan can end up backfiring and costing Jeff not just his bonus, but his job, severance and even the ability to collect employment insurance.
Legal or illegal?
To put it simply, if one party to the conversation is aware of and consents to the recording, it is not illegal. But if, for example, you record a conversation that you are not a part of, between two or more other people, the recording is not only illegal, but criminal.
Returning to Jeff’s conundrum, he concludes he is part of the conversation during his annual review and is on the right side of the law in recording his conversation with his boss. Unfortunately, the low bar of whether something is legal under the Criminal Code does not necessarily equate to it being a good idea and it may be cause for his discharge.
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.
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.
What is a valid reason? Unfortunately, that is much more complex and requires a competent employment lawyer’s opinion, armed with all the factual considerations of the specific context. Jeff’s circumstance of using such recordings to justify a large bonus would be unlikely to reach that threshold.
Returning to Jeff’s conundrum, if he thinks the employer’s decision to deny him a bonus is based on grounds that are prohibited (for example, race, sexual orientation or reprisal for pointing out health and safety issues), he may well be protected in recording a conversation that reveals those things. However, he should still seek legal help before electing to rely on it to get a better idea of what consequences may follow.
Takeaways for employees
However, be aware that such recordings have a habit of causing an enormous schism in the employment relationship and may well cause it to end, and, in the most unfortunate circumstances, create a significant loss to you. Navigating these waters is often not a simple, straightforward process, and will generally benefit from legal advice.
Takeaways for employers
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.
If you find out that one of your employees has taken to covertly recording conversations, you will need to address this problem. You have a broad range of possible options, from a discussion with the employee about their reasons for doing so, and working together to mend the relationship, to terminating the relationship with cause.
Pulling the trigger too quickly on termination for cause may cause bigger problems if the employee’s reason for recording was valid. But doing nothing and condoning the employee’s actions to continue such recordings may slowly and painfully poison the relationship, and prevent you from being able to terminate them later for just cause on this basis.
The right answer depends entirely on the context and how you want the matter to ultimately resolve.
Takeaways for Jeff
Jeff should be very careful about using any secret recording as leverage in his salary negotiations, and should reach out to an employment lawyer for advice before doing anything else.