Last week, I posted a blog about the advisability of recording conversations at the workplace. However, that’s not the only consideration to keep in mind given the advent of technology. I often receive calls from clients who suspect they are being monitored by their employers. One thing that is important to know is that secret recordings could capture personal information and infringe on privacy rights, which may lead to a claim for breach of privacy.
In 2012, the Ontario Court of Appeal established a new tort called “intrusion upon seclusion” and awarded damages for the breach of privacy in a case where an employee of a major bank accessed the personal financial records of her ex-husband’s new girlfriend on at least 174 occasions. This tort could arise in a situation where an employee’s expectation of privacy is violated by being surreptitiously recorded. Another problem is that secret recordings can erode the trust that is necessary in the employment relationship and potentially lead to constructive dismissal claims.
The case law around constructive dismissal is quite complicated, but generally speaking, a constructive dismissal occurs when an employer makes a significant change to an employee’s employment that shows the employer no longer wants to be bound by the contract. Furthermore, employers are subject to a duty of good faith both during a person’s employment, and at the time of termination. If employees have never been subjected to surveillance, suddenly introducing surveillance could be seen as a significant change that shows the employer is not willing to be bound by the original employment contract. Introducing new surveillance could also be seen as a breach of the duty of good faith. Judges have found that a breach of the duty of good faith can lead to aggravated and punitive damages in addition to wrongful dismissal damages.
If you believe you are being monitored by your employer, you should consult a lawyer. You can contact me at [email protected] or 647-985-9894.