Secret recordings

Proactive workplace policies make sense
Joe Figliomeni

The proliferation of mobile devices and related technologies has made it easier and more common for people to surreptitiously record private conversations. Even in the workplace, recording conversations is on the rise; people are frequently slipping their smartphones into their pocket and turning on their recording apps before the start of an important meeting. As such, it is worth reviewing the legal and practical implications of recording private conversations for employees and employers who decide to “wear a wire.”

Contrary to popular belief, recording a conversation that you are a part of, be it in person or over the phone, is not a crime. This is so even if the other party to the conversation has no knowledge that they are being recorded. So, secretly recording a conversation with your colleague to document your concerns with their inappropriate language in the workplace is not a criminal offence in Canada.

However, section 184 of the Criminal Code of Canada makes it illegal to record conversations in which you are not actually a participant. Placing a recording device in the lunchroom to eavesdrop on your coworkers would, therefore, be a criminal offence and could lead to harsh penalties, including imprisonment for up to five years in the most serious of cases.

When the relationship between employer and employee deteriorates and devolves into litigation such as a wrongful dismissal lawsuit or a human rights application, each side must exchange any relevant records (including electronic records) in their possession. In these circumstances, audio recordings of oral conversations can become crucial pieces of evidence.

For instance, an employee who alleges that he or she was forced to quit because he or she was subjected to ongoing verbal abuse or harassment will have a much easier time proving their case if they have recordings that support their claims of mistreatment. Likewise, an employer that terminated an employee for poor performance may be able to rely on a recording of the termination meeting in defence to the employee’s allegation that they were terminated for reasons prohibited by Human Rights legislation (i.e. age, citizenship, race, disability, family status, sexual orientation, etc.)

Notwithstanding the fact that secretly recorded audio may be legal, and that it may have great evidentiary value, recording workplace conversations can erode the trust that is necessary in any employment relationship. In most instances, covert recordings will infringe on privacy and confidentiality interests and, when discovered, create a hostile work environment which stifles the free flow exchange of ideas and communications. For these reasons, a Court or Tribunal may not look favourably upon employers or employees who decide to record their workplace conversations.

The 2017 case of Hart v. Parrish & Heimbecker, Limited is a perfect example of why employees should exercise great caution before secretly recording their conversations with management and co-workers. The Plaintiff, employee Mark Hart, was dismissed for cause following a series of four staff complaints related to his yelling at colleagues and bullying behaviour.

After the third complaint, Mr. Hart began to secretly record his meetings with management by placing his company issued cell phone on table tops while in record mode. His intention was to use the recordings to undermine the company’s position that his conduct was worthy of reprimand. At no point did Mr. Hart inform others that he was recording conversations. The Judge found that Mr. Hart’s conduct in surreptitiously recording meetings between him and his managers violated his confidentiality and privacy obligations and strengthened the company’s decision to terminate Mr. Hart for cause.

Employers concerned about the implications of audio recordings in the workplace should address the issue proactively. In particular, employers can include a clause in an employment contract or introduce a policy which prohibits employees from secretly recording any workplace conversations.

Joe Figliomeni is a commercial litigation lawyer at Lawrences Lawyers, Brampton, Ont.
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