Under the Criminal Code, it is illegal to intercept a private conversation, which includes recording a conversation. However, there are several exceptions to this law. A key exception is that if one party to the conversation consents, the conversation can be recorded legally. Therefore, employees may record their own conversations with others, but recording conversations that they are not part of would be illegal.
An employer can contract out of this one-party consent exception in its workplace. If the policies prohibit recording conversations in the workplace, and clearly state that doing so could lead to discipline up to and including termination, the employer may discipline and/or terminate an employee’s employment for contravening that policy.
In a recent Manitoba decision, Hart v Parrish & Heimbecker, Limited (“Hart”), the Manitoba Court of Queen’s Bench ruled that an employee using his company cell phone to secretly record meetings with senior management was a breach of his confidentiality and privacy obligations to the employer. Hart was the first time a Canadian court considered an employee’s secret recordings of workplace discussions with managers in the context of a wrongful dismissal claim.
The employee in Hart launched a wrongful dismissal claim after he was dismissed from his employment due to inappropriate and unprofessional behaviour. The employer received four (4) separate complaints. After each of the first three complaints, an investigation was launched and the employer took corrective action, including requiring the employee to attend career counselling and develop a personal code of conduct. After the fourth complaint, it was treated as the culminating incident and the employee was dismissed. Although the employer believed the employee’s conduct was sufficiently severe to allow the employer to terminate his employment for cause, the employer decided to offer a severance package on a gratuitous basis. The employee rejected the offer and the employer terminated his employment for cause. The employee brought a claim for wrongful dismissal.
For approximately four (4) months before his employment was terminated, the employee was surreptitiously recording meetings with senior management on his company cell phone. In addition to the unacceptable conduct the employer knew about at the time of dismissal, the employer at trial also argued that use of a company phone for a purpose that was never intended, that is recording conversations with senior management, was a deliberate violation of the employee’s duty of confidentiality and a breach of trust and loyalty to the defendant.
The Court ruled that the employee knew, or ought to have known, that the surreptitious recording was a breach of his confidentiality and privacy obligations to his employer as well as of the personal code of conduct he had prepared as part of the corrective action imposed on him. The recordings were a factor in the Court’s analysis of whether the employer had just cause to dismiss the employee. However, the Court ruled it was unnecessary to decide whether the use of the company cell phone to record meetings was cause for dismissal since the misconduct for which the employee was dismissed amounted to cause.
Strategies for Employers to Prohibit Surreptitious Recordings in the Workplace
An employer that wants to prohibit employees recording conversations in the workplace should expressly exercise their option to contract out of the one-party consent for recordings exception, especially if they want to be able to discipline or dismiss an employee for surreptitiously recording conversations with supervisors. To do so, employers should indicate clearly in their confidentiality and privacy policies that recording conversations in the workplace is prohibited. The policies should clearly state that engaging in this behaviour could lead to discipline up to and including termination. Further, employers should ensure employees are made aware of these expectations by requiring employees to sign off acknowledging that they have received and read the policies.
This blog is provided as information and a summary of workplace legal issues.
This information is not intended as legal advice.