A question employment lawyers are often asked – by employers and employees alike – is whether it is legal to secretly record conversations at work.
There are many reasons why someone might wish to record a workplace conversation. An employee suffering from harassment at the hands of an employer or co-worker may want proof of the conduct when bringing forth allegations. An employer may want to record a disciplinary meeting in the event of a future conflict with the employee over what was said. Both employers and employees may simply wish to have a record of an important meeting in order to ensure that objectives set during that meeting are met.
And, in the age of smartphones, recording conversations can be done subtly and with the simple push of a button.
Simply put, in Canada, while it is a violation of the Criminal Code to record a conversation to which you are not a party, it is legal to make a recording of a conversation in which you are participating, even without advising the other party or parties to the conversation.
Legal does not necessarily mean advisable, however, and despite the legality of recording conversations to which one is a party, doing so might be a breach of workplace obligations or covenants, and it can certainly create a hostile work environment.
In the Manitoba case of Hart v. Parrish & Heimbecker, Limited, the Judge admitted an employee’s secretly recorded conversations into evidence and found that the contents of the recordings provided just cause for his dismissal. However, the Court also expressed its disapproval of the recordings and agreed with the employer that the employee’s recording of workplace conversations amounted to a breach of his confidentiality and privacy obligations to his employer as well as a breach of his code of conduct.
The Courts have frequently acknowledged that trust is at the heart of a positive employment relationship. Employers and employees alike can appreciate that workplace productivity and morale will suffer when employees feel that they are under surveillance.
Anyone considering recording workplace conversations must remember that they may only record conversations to which they are a party. Legality aside, it is advisable to proceed with caution, carefully thinking about the necessity of the action and checking whether any workplace policies may be engaged.
Minken Employment Lawyers is your source for expert advice and advocacy on today’s employment law issues. Whether you are an employer or an employee, we can help. Contact us to see how.
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