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Employment & Labour

Dispelling myths around recording conversations, summary dismissal

In recent posts on his Canadian HR law blog, Toronto-area employment lawyer and mediator Stuart Rudner discussed the issue of whether employees should record a conversation with a colleague or superior and some of the myths and misconceptions around accommodation and dismissal.

As Rudner, employment lawyer and mediator and founder of Rudner Law, explains, people are often surprised to learn that, as long as one party to a conversation consents to the recording, there is nothing unlawful about it. 

“However, we caution that they could not leave a recording device in a room and then leave the room, since they would then not be a party to the conversation, and none of the participants would have consented to having the discussion recorded,” writes Rudner.

At the same time, he says, confirming that there is nothing illegal about recording a conversation that someone is a party to is the easy part of the discussion — a more complicated question is whether they should record it.

“If an individual is being harassed, it is often quite wise to do whatever they can to prove what is occurring, particularly since harassment usually takes place when there are no witnesses and any claim has to be addressed based on an assessment of credibility,” says Rudner.

However, he says, recording interactions with one's colleagues or superiors in other contexts is usually problematic.

“While it is not unlawful, doing so may well constitute a breach of confidentiality, a breach of privacy, and/or a breach of trust. Recording workplace interactions when there is no good reason to do so can result in discipline, including dismissal, in the right circumstances,” he writes.

Rudner says an employee that is surreptitiously recording her superiors may be giving her employer reason to question whether they can trust her going forward, adding to the argument that summary dismissal is warranted.

Although employers sometimes ask whether they should record conversations with employees, Rudner says this is unnecessary in most cases, as they should be able to arrange to have a witness for important conversations such as performance reviews, disciplinary meetings, and dismissal meetings.

“Having two people in such meetings is strategic as it allows there to be a witness present who can take detailed notes. Recording the conversation is a less attractive alternative since it could be found to be a breach of privacy or a breach of trust which could arguably constitute constructive dismissal.

“The bottom line is that there will be circumstances where surreptitious recording interactions will be appropriate. However, in most employment-related matters, it is not unlawful, but also not advisable,” writes Rudner.

Rudner says there are many myths and misconceptions around the issue of dismissal, which often lead employers to either impose summary dismissal when they shouldn’t — and expose themselves to liability — or fail to impose it when they can and should.

“There is a fairly common view that people with disabilities, or on medical, pregnancy or parental leave, are ‘untouchable.’ That is entirely untrue. An employee cannot be dismissed because of their disability (or leave of absence), but they can be disciplined or dismissed for other appropriate reasons that have nothing to do with their disability,” writes Rudner.

However, he says, the reality is that the disability or need for accommodation often ends up being part of the assessment.

“As the law has made clear, if a protected ground is even a tiny portion of the reason for dismissal, then the employee’s human rights have been breached, and the employer is liable. It is all-or-nothing assessment,” says Rudner.

Every dismissal, he says, must be assessed to determine whether it was warranted, bearing all relevant circumstances in mind.

“There will be situations where a single incident of misconduct will warrant summary dismissal. However, in many cases, it will be necessary to provide clear warning that the conduct in question is unacceptable and will lead to dismissal. 

"Many employers fail in this regard, preferring to provide watered-down warnings which do not adequately convey the seriousness of the situation. As a result, employees can often credibly claim that they did not understand that their job would be at risk if they engaged in the conduct in question,” writes Rudner.

He says he is also often asked whether courts and arbitrators will enforce the terms of “last-chance agreements” or whether, like zero-tolerance policies, they will insist on assessing every dismissal on a case-by-case basis.

“Although I often advise employers not to assume that they can rely upon zero-tolerance policies to dismiss an employee for any breach, the opposite is generally true for last chance agreements. Where an individual has entered into such an agreement, and then breached it, dismissal will usually be upheld,” he says.

Summary dismissal can be complicated and employers must bear in mind that the threshold for establishing just cause is high, says Rudner.

“They will have to show that the employee engaged in misconduct, and that in light of all relevant factors, summary dismissal was warranted. This contextual approach is critical, and will also take into account any need for accommodation or other mitigating factors,” he writes.

Ultimately, Rudner says employers need to ensure that they provide clear guidance to employees regarding what is acceptable and what will happen if they engage in unacceptable conduct.

“Furthermore, when imposing last chance agreements or other mechanisms, they must ensure their process is fair and that no loopholes or irregularities can be found that would invalidate a dismissal,” he adds.

To Read More Stuart Rudner Posts Click Here
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