Over the last few years, there has been a rise in employees surreptitiously recording conversations in their workplace. Between artificial intelligence and cell phone use being at an all-time high, capturing conversations or interactions is easier than ever.
However, there is exposure for the Company when an employee covertly records a private conversation to further their personal agendas. Surreptitious recorded content may be used by employees in a variety of ways, such as internal workplace complaints, as leverage in negotiations and even being brought into litigation.
It is important to note that under the Canadian Criminal Code, it is legal to record a conversation you are actively part of, even if the other party is not aware (one-party consent).
Case Law: Teljeur v Aurora Hotel Group, 2023 ONSC 1324
In this case, the employee had been dismissed without cause and had secretly recorded the termination conversation. Following termination, the employee filed for wrongful dismissal and sought punitive damages, relying on the recording to support their claims. The transcript was admissible and revealed that the employer had tried to convince the employee to resign from their position prior to eventually terminating them. The Court gave considerable weight to the transcript and held that the employer’s actions in dismissing the employee were a breach of the duty of good faith and fair dealing. The decision was upheld on appeal.
As an employer, here are a few things you can do to minimize the exposure of employees surreptitiously recording conversations:
- Develop a workplace policy on recording. This should explicitly state:
- Employees are not permitted to record, without seeking prior approval from all parties involved in the conversation; and
- Breach of this is a serious employment offence and may result in discipline.
- Ensure that all Company approved meetings that are being recorded through internal Company programs (ex. Zoom, Teams), explicitly notify your employees that they are being recorded.
- Be prepared to have your conversations recorded and conduct yourself in a respectful and professional manner at all times.
If you have any questions about the recommendations above or any specific situations in your workplace, please do not hesitate to reach out to speak with an e2r® Advisor.