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Employment & Labour

Secret recordings of meetings with boss may constitute just cause

By Barry B. Fisher

In this case, the judge upheld the dismissal of a 42-year-old merchandising manager with 15 years’ service for a series of four separate incidents that the plaintiff had with peers and subordinates.

In essence, he was found to have yelled at employees, displayed excessive anger and similar activity.

These matters were discussed with the plaintiff on a number of occasions.

34 For the period from October 16, 2013 up to and including the date of his dismissal, the plaintiff surreptitiously recorded meetings with senior management of the defendant. He recorded the meetings by placing his cell phone on the table in the record mode and did not advise the parties that they were being recorded. The plaintiff sought to enter the recordings as an exhibit at the trial. The defendant agreed that the recordings could be entered in evidence and that submissions would be made regarding the weight and relevance of the information contained in the recordings. The recordings commenced shortly after the complaint by Mr. Letkeman.

The employer claimed that the fact that the plaintiff made secret recordings of his meetings with management was itself grounds for dismissal. This is what the judge said about that issue.

97 The plaintiff’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 defendant. The plaintiff admitted on examination for discovery that he knew a breach of the confidentiality obligations could result in termination (examination for discovery transcript of the plaintiff held December 11, 2014, qq. 34 – 45, Exhibit 10).

98 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 Stone Ridge Consulting. In conducting the contextual analysis and assessing the severity of the misconduct, the plaintiff did not disclose the recordings to third parties outside of the defendant other than to his legal counsel and for the purpose of these proceedings.

99 This evidence was considered by me as a factor in determining whether the defendant had just cause for dismissal. However, it is unnecessary for me to decide whether the plaintiff’s use of his cell phone amounts to just cause for dismissal in this case. The plaintiff’s misconduct, as noted above, was relied upon by the defendant at the time of dismissal, and in my view, that provides just cause for dismissal in the circumstances of this case.

I have always had concerns about the issue of secretly recording meetings or telephone discussions with coworkers or bosses. This is the first case that I am aware of in which the courts have dealt with this issue.

This case should serve as a warning to those parties and their lawyers who think that secretly recording an employer or a co-worker is a good idea.

Ironically, in this case, it does not seem that the actual recordings in any way helped the plaintiff’s case.

Read More at Barry Fisher’s Employment Law Blog

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