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BC Court Finds Surreptitious Recording of Fellow Employees Just Cause for Dismissal

The recent decision from Justice Branch of the Supreme Court of British Columbia in Shalagin v. Mercer Celgar Limited Partnership, 2022 BCSC 112 provides a fresh precedent on when surreptitious recording in the workplace may amount to just cause for dismissal. As will be explained, determination of this issue requires a contextual view of the case at hand. Not all instances of surreptitious recording will amount to the level required for a just cause dismissal.

As an added bonus in this week’s article, I review a very helpful summary by Justice Branch on the current state of the law regarding deduction of CERB payments from notice awards. While it was not a live issue in this case given that just cause for dismissal was found, Justice Branch nonetheless reviewed the law as an alternative to their conclusion.

Facts

The Plaintiff was originally terminated in March 2020, without cause, because of a dispute unrelated to the facts of this case.

Following termination, the plaintiff filed an Employment Standards Act Complaint, a human rights complaint, and a wrongful dismissal proceeding. It was during these various proceedings where it was discovered that the plaintiff had recorded over 100 interactions at the workplace including:

1. several one-on-one training sessions from 2010 to 2014;
2. over 100 “Toolbox Talk” and safety meetings, at which he often presented personally; and
3. at least 30 one-on-one meetings with supervisors and human resources personnel about compensation and recruitment.

The plaintiff explained the purpose for these recordings being used to help him better learn English, and that he was keeping them as proof of discrimination he alleged to be facing.

After learning about the recordings, the Company amended their position on termination and instead asserted that they had just cause to terminate the plaintiff’s employment.

Ruling

The main issue to be decided in this case was whether there cause for the plaintiff’s dismissal?

It was ultimately decided that the plaintiff’s surreptitious recordings did constitute just cause for dismissal.

Reasons for Decision

It is not common that cause is alleged after a without-cause dismissal, but the facts of this case are unique in that the employer had no idea about the recordings until they were tendered during litigation.

While it may be legal (in the sense that it is not a criminal offence) in Canada to record conversations  so long as one party to the conversation consents, the question in this case was whether the employee’s actions fundamentally ruptured the relationship such that the mutual trust between the parties was broken.

It was for the following reasons that Justice Branch decided the surreptitious recordings supported just cause for dismissal:

• surreptitious recording can cause material damage to the relationship of trust between employee and employer;
• the plaintiff recorded very sensitive conversations, including recording conversations that involved personal information on other employees;
• there was no evidence to support the plaintiff’s allegations of discrimination. In fact, the evidence demonstrated the opposite as the plaintiff received substantial promotions during his tenure;
• other employees felt violated by secretly recording of their private information. And this reaction was found to be reasonable; and,
• there was a precedent argument here: if one were to accept the plaintiff’s argument, it may encourage other employees who feel mistreated at work to routinely start secretly recording co-workers. This would not be a positive development from a policy perspective, particularly given the growing recognition that the courts have given to the importance of privacy concerns.

The judge also found some mitigating factors, although these ultimately proved insufficient to overturn the Company’s position that it had just cause to dismiss the plaintiff:

• the plaintiff did not publish the recordings or use them for his own benefit outside of legal proceedings; and,
• the plaintiff was not acting with malice when making the recordings.

Conclusions

Companies can terminate someone’s employment for cause if facts are discovered after a termination without cause. These claims of “after acquired cause” are handled carefully by the courts, but in this case the covert nature of the recordings necessarily meant that the Company had no real ability to discover their existence until after termination.

This case supports the view that surreptitious recording can be the basis for termination if it fundamentally ruptures the relationship between the employee and employer such that mutual trust between the parties is broken. Employers should be aware, however, that recordings will not always rise to this level and are well advised to have clear policies prohibiting such activity in the workplace.

Important Side Note on Deducting CERB Payments from Notice Awards

While not exactly relevant to the topic of this blog, we would be remiss not to summarize the helpful comments made by Justice Branch on deducting CERB payments from an award of reasonable notice. In the alternative to the conclusions on just cause, Justice Branch commented in obiter about how the court should treat CERB payments if he had not upheld the just cause dismissal.

In Iriotakis v. Peninsula Employment Services Limited, 2021 ONSC 99, the plaintiff’s CERB payments were not deducted from a wrongful dismissal award. However, this Ontario decision was distinguished in Hogan v. 1187938 B.C. Ltd., 2021 BCSC 1021. In Hogan, the court determined that the plaintiff’s CERB payments should be deducted to avoid putting the plaintiff in a better position than he would have been in if he had not been terminated. In Yates v. Langley Motor Sport Centre Ltd., 2021 BCSC 2175, the court followed the decision in Hogan, and again deducted the CERB.

In the recent B.C. Provincial Court decision, Snider v. Reotech Construction Ltd., 2021 BCPC 238, the court declined to deduct the CERB. The court had the benefit of the Hogan decision, but decided to instead follow a decision of the Nova Scotia Supreme Court in Slater v. Halifax Herald Limited, 2021 NSSC 210.

Justice Branch found that the CERB should be deducted. Following the decisions in Hogan and Yates the court stated about those decisions that they better accord “with a foundational principle of contract law—ensuring that the plaintiff is put in the same position they would had been in had the contract been performed.”

Contact the legal experts at CCPartners for questions related to discipline and termination of employment. We can also answer your questions about CERB and other government programs related to the pandemic that impact your workplace.