Modern smart phones make it easy to record voice memos on the fly, capture videos of memorable events, and document almost every minute detail of your day. However, as the Court of Queen’s Bench of Manitoba outlined in a recent decision, one place where cell phone recordings may not be welcome is in the workplace.
The employee at issue worked at a grain shipping company. Over the course of several years, the employee faced a number of complaints from his colleagues about his yelling and bullying behavior. These complaints led to several meetings with management of the defendant employer. The employee recorded some of these meetings on his cell phone without the knowledge of anyone else present. His plan was to use the recordings in order to undermine the employer.
By February 2014, the employer decided that the employee’s continued employment with the company was no longer possible, citing abusive behavior in four separate instances as the reason. Initially, the employer urged the employee to resign, with compensation, but following a subsequent breakdown in negotiations, ultimately dismissed him with cause.
Use Of The Recording In Court
The employee brought an action against the employer and sought to enter his recordings of his meetings with management into evidence. The employer agreed to the request. It was the employee’s plan to undermine the employer’s position that he had been warned about his behavior and its possible consequences, including termination. However, the employer argued the recordings were an incomplete collection of the conversations that had taken place, and, moreover, that the existence of the recordings amounted to a breach of the employee’s confidentiality and privacy obligations to the employer
The Court ultimately found in favour of the employer, concluding that the employee’s misconduct was “inconsistent with the fulfillment of the express, or implied, terms of his employment…” As a result, the recordings did not end up playing a significant role in the decision.
Notably, the trial Judge did address in the recordings the decision, writing “The [employee’s] inappropriate use of his cell phone in secretly recording meetings with his superiors does amount to a breach of his confidentiality and privacy obligations to the [employer]. The [employee] admitted on examination for discovery that he knew a breach of the confidentiality obligations could result in termination.
…The misuse of his cell phone was also a breach of his personal code of conduct that he prepared as a result of his meetings with [the employer]. In conducting the contextual analysis and assessing the severity of the misconduct, the [employee] did not disclose the recordings to third parties outside of the [employer] other than to his legal counsel and for the purpose of these proceedings.”
What Does This Mean for Employees?
Employees should always be cautious of making secret recordings in the workplace. Doing so may violate confidentiality of codes of conduct they have agreed to, and may result in discipline, or in serious cases, termination.
If you believe you have been wrongfully dismissed or have received unfair disciplinary/warning letters, contact the office of Guelph employment lawyer Peter McSherry. We can help you understand your rights and evaluate your options in order to pursue your best course of action. Reach us by phone at 519-821-5465 or online.