February 2022
In the recent British Columbia Supreme Court case Shalagin v. Mercer Celgar Limited Partnership the Court decided that an employee surreptitiously recording his co-workers constituted just cause for termination.
The plaintiff did not dispute that the recordings were made and acknowledged that he did not alert his co-workers that he was recording them as he believed that it would make them uncomfortable. He argued, however, that since he was a party to the conversations, the recording was not illegal under the Criminal Code. The Court noted that “legality is not the sole barometer” when deciding whether an employee’s actions warrant termination. Rather, “The question is whether the employee’s actions fundamentally ruptured the relationship, such that the mutual trust between the parties is broken.”
The decision that employees can be terminated for cause for recording their co-workers without permission raises an interesting question for workplace investigators: If a party to a workplace investigation wants to submit a surreptitious recording as evidence, can you accept it? The short answer is yes, although it’s understandable that you may feel uncomfortable doing so. Independent investigators need to keep in mind that it is not our role to give legal advice to any of the parties in an investigation; accordingly, it would not be appropriate to advise a party on the folly of admitting to covertly recording their co-workers – an admission that could result in their termination. Ideally, this issue can be avoided by having an in-depth conversation with the parties at the start of the investigation, in which you clearly articulate your role and the fact that no discussions that take place with you can be considered “off the record.”
The next question is: If you accept the recording, can you keep its existence a secret? The answer to this one is an unqualified no, for a couple of reasons. In order to ensure procedural fairness during the investigation, both parties need to have a full chance to address the evidence of the other. This means that if recordings of conversations between them exist, the party who did not know they were being recorded must be given a chance to address the contents of the recording and, ideally, authenticate the recording. Although recordings are usually reliable evidence, they can be cropped and edited, and an investigator should generally not rely on them without first hearing from both parties.
Clearly the other side needs to know about the existence of the recording, but can its existence be kept from your client, the employer? Again, the answer is no. The report that you will be sending to your client should contain an accurate description of the evidence and how you evaluated it, and this must include the existence of the covert recording if you rely on it in any way in coming to your findings.
Top tips for employers:
Have a workplace policy that clearly articulates that covert recordings are not permitted
Train your staff on the policy
Ensure that employees know that they can record information by other means – such as taking notes – if they feel the need to
Top tips for investigators:
Confirm from the outset that the parties you’re interviewing understand your role and know that nothing is “off the record”
Make sure that both parties have a chance to address all the evidence you intend to rely on, whatever the form
Be transparent in your report about all the evidence you considered, and how you weighed it
All information contained in this blog post is the opinion of Michelle Bird Workplace Consulting and does not constitute legal advice.