Manitoba worker terminated after secretly recording conversations at work
“Each individual complaint that an employee raises is something that should be dealt with in isolation – it shouldn't be clouded by looking at the history of the complainant.”
So says employment lawyer Mark Alward at Taylor McCaffrey in Winnipeg, after the Manitoba Labour Board dismissed a worker’s appeal alleging that he was terminated in retaliation for raising workplace harassment and safety concerns.
“The concern is that if you have an employee who has a history of making complaints that weren’t substantiated in the past, then you may have the ‘boy who cried wolf’ issue where you disregard the current complaint that may actually be serious, and then the wolf gets the sheep,” he says.
The worker in this case was employed by Gienow Canada, a window and door manufacturing company in Winnipeg, as a delivery driver, starting on Feb. 6, 2023, on a probationary period.
Safety complaint
On Feb. 22, the worker turned down the volume of a radio in the warehouse that the warehouse manager used to play music. The worker said that he heard negativity in the music “because he was a different type of person.” The warehouse manager felt that the radio wasn’t so loud that people couldn’t talk around it and it was near the dock doors, so didn’t create a safety issue.
The warehouse manager turned the volume back up, but a few times over the course of the day the worker turned it down again. Other employees reported hearing a loud bang in the warehouse and noticed that the door separating the warehouse from the office area appeared to be hanging partially off its hinges. He also saw the warehouse manager upset.
Eventually, the manager complained to Gienow’s operations lead and the worker raised a safety concern that the radio’s volume was a safety hazard.
The operations lead decided to remove the radio from the warehouse, but a short time later it was brought back, with the volume turned up when the worker wasn’t there and turned down when he was. The warehouse manager was suspended for one week for his aggressive response, but the worker wasn’t disciplined.
Incidents of alleged misconduct
On March 10, another employee who had been working with the worker reported to the operations manager that he had told the worker to turn off his truck while unloading it, but the worker had threatened to stab him and called him “a lazy bastard.” The employee also said that the worker had run through a red light and honked at a police car while driving the truck with the company’s logo on it, causing the police to follow them until traffic made it too difficult. He said he had felt in danger and refused to work with the worker again.
The worker denied everything. Gienow investigated but couldn’t corroborate the co-worker’s version of events. The worker was warned to refrain from making threatening comments and not speak to a co-worker about their performance, to avoid creating a hostile work environment. There was no formal discipline.
On March 29, a shipping and receiving employee reported that the worker approached him and had taken a swing at him. The employee denied that happened or that he insulted the worker.
The worker made some complaints of his own, such as the warehouse manager returning to work when he thought that he should have been fired, the radio being played too loud, harassment from the warehouse manager for not being allowed to park a truck in the warehouse, and not being allowed to work alone after a certain time that denied him the chance for overtime.
Gienow investigated all of the worker’s complaints, making some recommendations but finding no safety violations. The company decided to conduct a safety assessment on the radio use but noted that the situation with the warehouse manager had already been dealt with. It also said it would develop safe work procedures for working alone so the worker could be eligible for overtime, and rules on parking the truck in the warehouse.
Workplace investigation
At an investigation meeting on April 10, the worker said he wanted to get his cellphone to record the meeting. The operations lead said there was no need to record, but the worker said it was for his safety. The operations lead again said no, but the worker left while they continued to talk with the warehouse manager.
The operations lead received a text that said the worker had slid his cellphone under the door to record their conversation. They found the phone on the floor and the worker outside the door.
Two days later, another meeting was scheduled to review the investigation findings. The worker said that he was recording the meeting because his contract said employees were under surveillance and gave him the right to record. He was asked to stop, which the worker refused, saying he needed it for evidence in case he was terminated.
The operations manager said he wouldn’t continue the conversation and gave the worker a termination letter that had been prepared as a backup plan in case the worker continued to record meetings. The worker was told that he was being terminated for secretly recording conversations after being directed not to.
The worker contacted the Manitoba Workplace Safety and Health (WSH) Branch alleging that his employment was terminated because he reported workplace bullying and harassment. A WSH officer investigated and rejected the claim, so the worker appealed.
Exercise of safety rights
The worker was required to establish a prima facie case under s. 42 of the Workplace Safety and Health Act (WSHA), demonstrating that he exercised his rights under the WSHA, suffered a negative employment consequence, and there was a reasonable and timely connection between the two.
The board found that the worker had raised concerns related to safety, such as the volume of a warehouse radio as potentially hindering the ability to hear equipment in the warehouse and alleged harassment by the warehouse manager because of the radio issue. However, Gienow investigated the worker’s complaint at the time and there was no discipline or other negative consequence for the worker, the board said, adding that when the radio issue came up again, the company recommended s safety assessment.
“The employer responded to the workplace safety and health issues, it acted by the book, and there were no negative employment consequences at the time,” says Alward. “The employer did a good job of reacting in the appropriate and the proper way to the complaint, and by doing that, it made it difficult to then say it had taken a reprisal action.”
“The company took each thing that this worker did on its own merits and figured out the best way to respond to each of those particular issues,” he adds.
The board agreed that the worker suffered a negative employment consequence when his employment was terminated. However, the evidence showed that he was dismissed due to his persistent recording of conversations with management despite being explicitly directed to stop, said the board, noting that the company only gave the worker a termination letter when he refused to comply with directions to stop recording.
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Insubordination
Citing previous decisions, the board determined that the worker failed to establish a prima facie case of reprisal, finding that the timing of the worker’s termination was directly linked to his unauthorized recordings rather than any workplace safety complaint.
The nexus between the workplace safety and health issue and the negative employment consequence simply wasn't there, says Alward.
“It was multiple weeks between when these two things happened – it’s not that there can't be a nexus in that circumstance, but there was another intervening event between the safety and health issue and when the worker was terminated,” he says. “And that was a significant amount of what could only be described as disrespectful or insubordinate conduct by trying to record meetings, even though he had been told explicitly that it wasn’t acceptable.”
The Board also rejected the worker’s assertion that he was entitled to record conversations, noting that while recording isn’t a criminal offence, employers are within their rights to prohibit it in the wrokplace.
The worker’s appeal was dismissed.
The fact that the worker was still on a probationary period is a reminder that employers should consciously evaluate the suitability of an employee during that time, according to Alward.
“If the employee is either not meeting expectations or creating significant interpersonal problems within the workplace, the employer should leverage the probationary period to action that person not remaining in the workplace,” he says. “In Manitoba, you have to provide one week of notice after 29 days of employment, but a week's pay is worth it to action a termination sooner rather than later if the person is already creating problems in the workplace.”
