Smile, You’re on Candid Camera: Employees Recording Conversations at Work

Brian, January 21, 2019

With the advent of smartphones, it is easier than ever for an employee to record a conversation with a coworker or supervisor without that person being aware. When I deliver training to managers and human resources professionals, I am often asked whether these recordings are legal. Certainly, they are legal in a criminal law sense: it is not a criminal offence to record your own conversations without telling the other person. (On the other hand, “bugging” a conversation that you are not part of is a criminal offence.) Just because something is not criminal, however, doesn’t mean employees should do it in the workplace.

Indeed, until a few years ago, labour arbitrators normally refused to accept secret recordings as evidence. They recognized that there was nothing “illegal” about making the recordings, but they were concerned that employees or unions recording conversations without management’s knowledge, or vice versa, could do significant damage to labour relations. So they discouraged the practice by refusing to accept the recordings as evidence. In the last few years, however, this trend has changed. Arbitrators still find surreptitious recordings distasteful, but they’ve begun holding their noses and listening to the recordings anyway. They reason that a recording is the best possible evidence of what happened during a conversation and will allow the arbitrator to make the best possible decision on the case at hand. The interest of justice in making the correct decision outweighs the problems with secret recordings.

In light of this change, what’s to stop employees from recording conversations at work? I would argue, your employment policies and the progressive discipline process. A recent judicial decision from the Yukon supports this view.

In Schaer v. Yukon (Government of), the Supreme Court of the Yukon decided that a government employee had created a “complete breakdown of the relationship of trust between him and his employer” by secretly recording several conversations with his supervisors and other coworkers. As a result, the Yukon government was justified in releasing him during his probationary period. The court noted that his conduct could also have been grounds for disciplinary action. It further rejected the employee’s defence that his recordings were justified as whistle-blowing, finding that none of the government’s alleged actions were serious illegal acts or jeopardized anybody’s life, health or safety.

The privacy tort of “intrusion upon seclusion”, which was recognized by the Ontario Court of Appeal in Jones v. Tsige in 2012, could also provide a basis for disciplining employees for secret recordings. The Court of Appeal decision was not about employment-related discipline, but its underlying principles – avoiding intentional intrusions into another person’s private affairs – may still apply. Indeed, prior to the Court of Appeal’s decision, Ms. Tsige’s employer had already disciplined her for her breaches of Ms. Jones’ privacy.

To bolster the ability to discipline for secret recordings at work, employers may wish to directly address the issue in a privacy policy or an information technology policy.

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