Employers should take note that while secretly recording a workplace conversation is not a criminal offence if the person recording it is a member of that conversation, it may still come with serious ramifications. As an example, a recent Court of Appeal case out of British Columbia upheld a ruling that secretly recording a conversation in a workplace is grounds for just cause termination of employment. If evidence of secret workplace recordings comes to light, employers should consider whether termination for cause is warranted.

In 2022 BCSC 112, an employee was first terminated by his employer without just cause. The employee brought a civil claim against the company for wrongful dismissal in the BC Supreme Court, a claim at the Human Rights Tribunal (“HRT”) and under the BC Employment Standards Act. The proceedings at the HRT revealed that the employee had surreptitiously recorded numerous conversations with supervisors and others during his ten years of employment. Upon learning this information, the employer amended its pleadings in the civil claim and claimed that it would have terminated the employee for just cause had it known he was secretly recording workplace conversations. 

The employee felt he was being mistreated by his manager, which was his reasoning for recording workplace conversions. The judge at the BC Supreme Court determined that the employee knew making the recordings was ethically wrong, despite not being illegal. The judge found that the employee had no legitimate reasons to make the recordings. Further, the employer had a Code of Conduct regarding “confidential information” to uphold, requiring the employee to make all reasonable, necessary, and appropriate efforts to safeguard the confidential information of the company. In addition, the recordings included private information of the employee’s colleagues, who testified that they felt violated by the recordings that captured personal information, and felt that he had broken their trust.

The judge’s underlying question was whether the secret recordings fundamentally struck at the plaintiff’s employment relationship, and if the employee’s actions ruptured the relationship breaking the mutual trust. The trial judge decided that the plaintiff’s conduct in secretly recording his colleagues and superiors constituted just cause given the impact of his actions on the relationship of trust.

The BC Court of Appeal upheld these findings in their decision 2023 BCCA 373.

Key Takeaways

• Given that this ruling was upheld by the BC Court of Appeal, employers across Canada should take note of the outcome, and its potential applicability in their workplace.
• This case highlights the emphasis courts put on the privacy of individuals and employees as well as trust in the workplace.
• To clarify what conversation an employee can record, an employer can set out specific guidelines in work policies and contracts with their employees.
• If an employer becomes aware that an employee is making secret recordings at work, this may be grounds for a just cause termination. In considering terminating employees, especially for just cause, employers should consult with their employment lawyer.