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Secret Recordings Revealed at Hearing Gave Employer Just Cause to Terminate

Two key principles emerged from the British Columbia Court of Appeal in one recent wrongful dismissal decision.

  1. Surreptitious recording of conversations in the workplace can lead to just cause for termination; and
  2. Evidence that only came to light post-termination, can be relied on to establish just cause to terminate employment if the misconduct discovered discloses a basis for just cause that existed at the time of the termination. This is known as “after-acquired cause”.

This is a rarely argued position, but in Shalagin v. Mercer Celgar Limited Partnership, the British Columbia Court of Appeal upheld the trial judge’s decision that the employer had established after-acquired cause for termination when it was revealed that the employee had been making surreptitious recordings of private meetings during his employment.

At the time of termination, the employer did not assert just cause. The employee filed a discrimination claim to the Human Rights Tribunal, claimed Employment Standards Act violations, and sued the employer for wrongful dismissal. During the hearing at the Human Rights Tribunal, the employee revealed that he had surreptitiously recorded numerous personal training sessions, including at least 30 meetings with supervisors and the human resources team at his workplace.  He claimed that he made these recordings to prove that he was being discriminated against. However, he also ‘picked up’ other conversations with co-workers that were recorded over his ten years of employment, which he said occurred by accident. When the employer learned about the recordings made by the employee, they amended their defence in the Supreme Court to plead that at the time of termination, unbeknownst to them, they had just cause for dismissal.

The trial judge agreed.

The issue on appeal was whether the employee’s surreptitious recordings in the workplace gave the employer after-acquired cause to terminate employment without notice or pay in lieu thereof.

The Court of Appeal dismissed the employee’s appeal and found that the trial judge did not err in finding just cause for termination.

The Court was convinced that recording private conversations was underhanded and would generally be regarded by most employers as a misconduct undermining the trust relationship between an employer and employee. Moreover, the act violated the privacy interests of the individuals who were being recorded and those who were discussed in the recordings.

The Court relied on the reasoning from a seminal Supreme Court of Canada decision (McKinley v. BC Tel) for the principle that it must take a contextual approach to determine whether the nature and degree of the dishonesty warranted dismissal.

The Trial Court reviewed the “difficult” experiences the employee allegedly had with the supervisor, but still found that he was aware that some parts of the recording were “unethical, even if not illegal.” Further, the Trial Court noted that during the trial, the employee’s reason for making the recordings shifted from hoping to improve his English skills to hoping to ‘catch out’ his supervisor being discriminatory. This change in explanation added to the context of the matter and undermined the employee’s claim.

In summary, the Court of Appeal did not agree that the trial judge erred or misapplied the law of wrongful dismissal to this situation. the Trial Court applied a contextual approach to determine that the nature and degree of the dishonesty by the employee warranted dismissal for just cause. The employee was aware that the recordings were unethical and had no real connection to his argument of being discriminated by his supervisor. His reasoning behind the surreptitious recordings changed several times throughout the trial proceedings and demonstrated a dishonest nature towards his employer.

The lawyers at CCPartners can help guide you through post-termination issues like the discovery of previously unknown misconduct. If you need help understanding your options, contact one of our professionals.

Click here to access CCPartners’ “Lawyers for Employers” podcasts on important workplace issues and developments in labour and employment law.



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