Should I record the conversation?
While permissible, recording interactions with colleagues is problematic and could result in dismissal
Jul 14, 2017
While it is not unlawful, recording interactions with a colleague may well constitute a breach of confidentiality, a breach of privacy, and/or a breach of trust. Shutterstock
By Stuart Rudner
That is a question that we are asked all the time by both employees and employers. We always explain that somewhat surprisingly, there's nothing "illegal" about surreptitiously recording a conversation, as long as you are a part of it. In other words, as long as one party to a conversation consents the recording, there is nothing unlawful about recording it. This often comes as a shock. However, we caution that they could not leave a recording device in a room and then leave the room, since they would then not be a party to the conversation, and none of the participants would have consented to having the discussion recorded.
Confirming that there is nothing illegal about recording a conversation that someone is a party to is the easy part of the discussion. The more complicated question is whether they should record it. In many cases, we are asked about this by employees who are being harassed or mistreated, are concerned that their boss says one thing and does another, or otherwise want proof of what they are experiencing at work. It can relate to colleagues or to superiors.
If an individual is being harassed, it is often quite wise to do whatever they can to prove what is occurring, particularly since harassment usually takes place when there are no witnesses and any claim has to be addressed based on an assessment of credibility. However, recording interactions with one's colleagues or superiors in other contexts is usually problematic. While it is not unlawful, doing so may well constitute a breach of confidentiality, a breach of privacy, and/or a breach of trust. Recording workplace interactions when there is no good reason to do so can result in discipline, including dismissal, in the right circumstances.
As I have written about in my book, You’re Fired! Just Cause For Dismissal In Canada, as well as innumerable blog posts and articles, when employers allege that they have just cause for dismissal, what they must establish is that the employment relationship has been irreparably damaged. In many cases, this is based at least in part upon an allegation that the requisite trust no longer exists, and the employer could not therefore be expected to continue employing the individual. An employee that is surreptitiously recording her superiors may well give her employer reason to question whether they can trust her going forward. As a result, it may add to the argument that summary dismissal warranted.
There is not much case law on this issue, but there was one recent relevant court decision in Manitoba. Ironically, in Hart v. Parrish & Heimbecker, Limited, the plaintiff employee surreptitiously recorded conversations in order to build his case, and ended up having those recordings used against him in two different ways. As is often the case, there was a dispute as to whether the recordings could be entered into evidence. Just because you can make the recordings does not mean you can refer to them in court.
Ironically, in this case Mr. Hart fought to have the recording admitted into evidence. He may wish that he hadn’t. The recordings are evidence of his misconduct. Furthermore, the fact that he had recorded the conversations was found to constitute a breach of confidentiality and used as further justification for his dismissal, which was upheld by the court.
Conversely, we are sometimes asked my employers when they should record conversations with employees. In most cases, this will not be necessary, as they should be able to arrange to have a witness for important conversations such as performance reviews, disciplinary meetings, and dismissal meetings. Having two people in such meetings is strategic as it allows there to be a witness present who can take detailed notes. Recording the conversation is a less attractive alternative, since it could be found to be a breach of privacy or a breach of trust which could, arguably constitute constructive dismissal.
The bottom line is that there will be circumstances where surreptitious recording interactions will be appropriate. However, in most employment-related matters, it is not unlawful, but also not advisable.
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Stuart Rudner is a founding partner of Rudner MacDonald LLP in Toronto. Follow him on Twitter @CanadianHRLaw
. He can be reached at firstname.lastname@example.org