Aug 10, 2018

Secretly Recording Your Boss: A Slippery Slope (Part 1)

One question I have been frequently asked is whether an employee can record a conversation with their supervisor, usually without the supervisor’s knowledge. As technology has advanced to the point that we all have recording devices in our pockets (i.e. our smartphones), this issue will only become more common in the workplace.

The first question I often hear is “is it legal?” Although I am not a criminal lawyer, my understanding is that it is not a crime to secretly record a conversation as long as the individual doing the recording is an “open participant” in that conversation. For example, it is not criminal to place your smartphone on a table and record the conversation you have with a supervisor, whether or not your supervisor is aware of that recording, because you are participating in that conversation. However, if you leave the room and leave your phone behind, and the phone records a conversation between your supervisor and a third party, that is criminal.

The more important question, which I’m not always asked because people tend to be satisfied with the answer above, is “should I record a conversation with my supervisor or manager?” Employees typically want to know because they want to have a record of what was said during a meeting, usually in the context of a disciplinary meeting, or are preparing to file a workplace complaint.

However, although something may be legal, it is not necessarily appropriate to do in the context of an employment relationship. In Hart v Parrish & Heimbecker Ltd., a recent case from Manitoba, Mr. Hart sued for wrongful dismissal damages after the company terminated his employment. Mr. Hart was the subject of four separate complaints from his co-workers. After the third complaint, Mr. Hart began to secretly record meetings with senior management. After the company received a fourth complaint, the decision was made to terminate Mr. Hart’s employment. He was offered a severance package comprising of one year’s salary with benefit continuance. Negotiations broke down and Mr. Hart commenced his wrongful dismissal action.

In addition to the four workplace complaints against Mr. Hart, the employer relied upon acts of Mr. Hart that were unknown at the time of the dismissal, specifically, the fact that he began surreptitiously recording his meetings with senior management. The employer argued that using a company telephone for a purpose for which it was never intended was a deliberate violation of his duty of confidentiality, and a breach of trust and loyalty to the employer. The court found that the for cause termination was reasonable in light of the workplace complaints against Mr. Hart. The court also found that Mr. Hart’s inappropriate use of his cell phone in secretly recording meetings with his superiors amounted to a breach of his confidentiality and privacy obligations to his employer. Ultimately, because the court found the employer had just cause based on the four workplace complaints, the court chose not to answer whether the surreptitious recordings justified a just cause termination as well. However, it is possible that a court would conclude that secret recordings have the effect of eroding the trust that is necessary in the employment relationship, which is a factor the court will take into account in deciding whether just cause exists.

Thus, just because something is legal, does not mean it is advisable. Secretly recording a conversation with your supervisor or manager could backfire. There are definitely more considerations to keep in mind than whether the act itself is criminal.

On the other side of the coin, if you are concerned about your employer secretly recording conversations, you may have a claim for breach of privacy, constructive dismissal, and/or breach of the duty of good faith. As this blog post is already quite long, I’ll be tackling these issues in another blog post.

If you have questions about your rights at works and the advisability of recording a conversation at the workplace, you can contact an employment lawyer at MacLeod Law Firm. You can reach us at [email protected] or 647-204-8107.


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