Recording Conversations at Work: A New Trend
In a day and age where electronic devices have become an accessory that is in some form or another carried around with us at all given times, our understanding of privacy in all facets of our lives is changing. The truth is, even in an environment like the workplace, where one might think what they do or say is relatively private, this is not always the case. We are seeing a trend in employment disputes whereby workplace conversations, in which one party may have assumed was private and confidential, was secretly recorded by one party and used as a key piece of evidence in a dispute. Recording conversations at work is on the rise.
Most people are surprised to learn that you can make a recording of a conversation without the other person knowing, and even without their consent. However, there is a caveat to this: You must be an active participant in the conversation. In short, it is not illegal to record your own conversations with others without them knowing, be it in person or over the phone, as long as you yourself consent to recording it.
However, it is illegal to record conversations between others that you are not actually participating in. To do this would result in a breach of section 184 of the Criminal Code of Canada (illegal interception of private communications) and could lead to hefty penalties, including imprisonment for up to 5 years in the most extreme case. However, as a result of a saving provision under the same section of the Criminal Code, generally known as the “one party consent rule”, if you consent to recording your own conversation than it is not illegal.
For example, you cannot secretly record a conversation between your boss and another co-worker, even if they were talking about you and you were in the room. However, you could record your own conversation between yourself and your boss behind closed doors without your boss knowing.
In employment disputes, having recorded documentation can be very relevant in the context of constructive dismissal cases. For instance, an employee may be facing a poisoned work environment as a result of ongoing verbal abuse or harassment. An employee is not required to withstand this form of mistreatment, and could commence a constructive dismissal claim to receive his or her severance entitlements. However, in cases where an employee claims that he or she was required to quit as a result of mistreatment, there is a high onus on the employee to prove that the employer’s actions amounted to an intention to no longer be bound by the terms of the employment contract.
I often see clients who have withstood months or even years of mistreatment by their employer, but have failed to document any of the wrongful events, whether in writing or otherwise. This can make it more difficult to resolve the case in a timely manner, or prove the merits of the claim at all. Other instances where recording workplace conversations may be relevant is where an employee is confident that a termination is impending but the employer has a history of misconstruing the truth, or the employee fears that an employer may deny crucial facts surrounding the termination.
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The fact of the matter is that, having actual documentary evidence of events will generally make your case stronger. Without having documentary evidence, whether in the form of written, audio or even video documentation, a Court will be faced with the task of having to judge the credibility of the parties and witnesses themselves based on their own word.
This can essentially come down to a “he said / she said” assessment of an individual’s recollection of events, whereby a Judge may simply prefer one side of the story over the other. Having a recorded conversation of your boss actually mistreating you – straight from the horse’s mouth – can be very material evidence if it is relevant to the issues at dispute, whether coming from an employee or employer.
With that being said, it is important to use caution before deciding to hit the record button at work. Having your boss or co-workers discover you have been secretly recording conversations with them could result in mistrust or friction in your employment relationship, and possibly damage your reputation. Although an employer would likely not be able to terminate you for cause upon discovering you recorded a workplace conversation (depending on your workplace’s particular policies), it could end up doing more harm than good.
With respect to employers, the same word of caution applies. While having an actual record of what was said by an employee can solidify the facts of a case, especially in cases where an employee may have to be terminated on a ‘just cause’ basis, employers should be cautious in making it common practice. If your employees are aware that you are in a practice of secretly recording meetings or private conversations, this could create a hostile work environment.When recording a workplace conversation, ensure you're an active participant in it. Click To Tweet
Tips for Both Employees and Employers:
- If you are considering recording a workplace conversation, ensure you are actually an active participant in the conversation and not a mere bystander;
- Recording conversations at work should not be the norm. It should generally be used as a last-case resort when you feel confident that you may need to leave your employment as a result of mistreatment at work, or, when a termination is foreseeable and there is a likelihood that your employer may attempt to lie or misconstrue events surrounding your termination;
- Be aware of any workplace policies that might specifically address recording conversations at work; and
- If you are experiencing issues at work, whether with an employee or employer, it is best to contact us as soon as you can to determine how to best start documenting your potential case, which may or may not include recording workplace conversations.
Jennifer Corbett is an associate lawyer with Samfiru Tumarkin’s Labour and Employment Law Practice Group in Toronto, Ontario.