More and more employees are secretly recording workplace conversations. Although it not is not a crime to secretly record a workplace conversation if you are a party to it, one judge recently concluded it is just cause for termination. This blog discusses this case.
Mercer Celgar Limited Partnership (the “Company”) terminated Mr. Shaligan’s employment without just cause. During the litigation process the Company discovered that Mr. Mercer had secretly recorded many workplace conversations including several one-on-one training sessions; over 100 “Toolbox Talk” and safety meetings; and, at least 30 one-on-one meetings with supervisors and human resources personnel about compensation and recruitment. Thereafter the Company took the position it had after acquired cause; that is, it claimed it would have terminated him for just cause had it known he was secretly recording workplace conversations.
Applicable Workplace Policies
Mr. Shaligan agreed he was bound by a Code of Conduct which stated, in part, that he would not disclose confidential information concerning the affairs of his employer.
Under this Code of Conduct, “confidential information” means information acquired in the course of a professional services relationship with a party. Such information is confidential to the party regardless of the nature or source of the information or the fact that others may share the knowledge. Such information remains confidential until the party expressly or impliedly authorizes it to be divulged. In the case of an employee‐employer relationship, a member or student has legal obligations to the employer that include a duty of confidentiality. The CPA Code imposes a duty of confidentiality as a professional obligation, which is in addition to the member’s or student’s legal obligation to the employer.”
It also stated: “A registrant shall not use confidential information of any client, former client, employer or former employer, as the case may be, obtained in the course of professional work for such client or employer: for the advantage of the registrant; for the advantage of a third party; or to the disadvantage of such client or employer without the consent of the client, former client, employer or former employer.”
Facts the Judge took into Account
The judge considered the sheer volume of recordings, and the period of time over which they occurred.
Mr. Shaligan did not ask permission to make the recording first because it was not illegal, and because he was aware that “people would feel uncomfortable if they knew” they were being recorded.
The initial recordings that Mr. Shaligan claimed were made for his own language training purposes may not, on their own, have supported just cause.
At least some of the recordings are properly viewed as being solely “for the advantage of [Mr. Shaligan]” within the meaning of the Company’s Code of Conduct.
Over time Mr. Shaligan recorded ever more sensitive conversations, including conversations that involved personal information on other employees. The conversations included personal details about his co-workers that had nothing to do with the workplace.
Mr. Shaligan’s professional obligations provided support for a finding that he did not conduct himself as an employed CPA should have done.
Mr. Shaligan claimed that some of his conversations were justified because of concerns about discrimination. The judge concluded there was not a legitimate basis to make recordings based on a fear of discrimination.
People who were secretly recorded testified that they felt violated by the recordings and felt that the trust they invested in Mr. Shaligan had been violated—a trust that included telling him about personal family matters, which were recorded.
Given the growing recognition that the courts have given to the importance of privacy concerns, the judge concluded that permitting employees to routinely start recording co-workers was not a positive development from a policy perspective.
“The only question is whether the fact of the recordings go to the root of the plaintiff’s contract, and fundamentally struck at the plaintiff’s employment relationship.” or “The question is whether the employee’s actions fundamentally ruptured the relationship, such that the mutual trust between the parties is broken.”
“I find that the plaintiff’s conduct in surreptitiously recording his colleagues constitutes just cause given the effect of the relationship of trust.”
Lessons to Be Learned
1. Although this case considers a situation where an employee secretly records conversations the same principles apply to employers.
2. To clarify what conversations an employer can record in the workplace the employer can include a clause in the employee’s employment contract or introduce a policy addressing this issue.
3. To make it clear that an employee cannot record a workplace conversation without first obtaining the employer’s consent the employee can include a clause in the employee’s employment contract or introduce a policy addressing this issue.
For over 30 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him directly at 416-317-9894 or at [email protected].