Secret Recording Admitted in Dismissal Case

Written by Daniel Standing LL.B., Editor, First Reference Inc.

Surreptitious recordings aren’t restricted to the realms of James Bond movies and undercover police work; they crop up in employment disputes, too. Whether the decision-maker presses “play” depends on the outcome of a delicate balancing act that pits the value of the recording against the prejudice it might cause. The Court of King’s Bench of Alberta’s analysis in 2022 ABKB 813 (CanLII) is instructive to employers and employees alike.

Background

When he began his career with the employer dealership in 1990, the cantankerous car mechanic at the centre of the case had expertise in air conditioning and electrical systems. Over the course of the next decade, he expanded his abilities to the field of drivability-issues that affect a car’s ability to drive.

While his mechanical skills were good, problems with his attitude led to a few short unpaid suspensions, souring his relationship with his superiors. During one blow-up, one of them was recorded as telling him, “I’m not going to fire you, I will just make you fucking quit.”

Then, without any details, he was told changes were coming to the drivability department. As a result, work previously assigned to him was given to other mechanics, and his annual income markedly decreased to 31%. Unsurprisingly, he alleged unjust dismissal. When the dealership eventually learned the mechanic had secretly recorded various of his conversations at work, the dealership alleged after-acquired cause for termination.

What the court decided

Justice Feasby’s decision to admit the recordings into evidence was a key part of his legal analysis. The judge explained his findings in light of other BC cases that reached the opposite conclusion.

The question boils down to determining whether the value of the evidence in helping the court decide a matter at issue outweighs the possible negative effects that secret recordings can have on workplace cooperation and open and frank discussions in the workplace. They are often seen as eroding the trust that is central to employment relationships.

The court determined that the mechanic’s recordings were warranted in this case since he already had reason to believe he was being constructively dismissed and being portrayed as a problem employee when he began making them. As one arbitrator observed, such recordings can be warranted in situations where there is a power imbalance, and a party needs to establish their credibility in the face of being cast as a perpetrator or liar. The court noted that, in the present case, the relationship had already broken down, making the policy rationale for excluding the recordings less persuasive. The court said the employee was justified in recording his conversations since the employer imposed unilateral changes on him and disciplined him contrary to his terms of employment.

The ultimate issue of constructive dismissal was also resolved in the employee’s favour. To make that finding, however, the court first determined there was no implied right to suspend the employee without pay. In this case, no written contract gave an express right to suspend. That meant looking to see whether any of the three possible justifications for finding an implied right existed: by operation of custom or usage, as the consequence of a particular type of contract, or to give a contract the necessary business efficacy. None of these applied to the facts, and while the contract impliedly allowed for reasonable discipline by reason of business efficacy, this would have meant a suspension with pay, not three without pay as the employer had done. By placing itself in the role of judge, jury and executioner without giving the employee any recourse for reviewing the suspensions, combined with the job and pay changes, the employer had unilaterally made substantial changes to the employment contract that amounted to constructive dismissal.

Finally, the court assessed reasonable notice at 18 months, amounting to about $184,000.

Key takeaway for employers

There are no absolutes when it comes to audio recordings. The cases canvassed in this decision indicate that, often, they’re too harmful to the parties’ ongoing relationship to be allowed into evidence. Other times, as in this case, they become the only tool at the employee’s disposal for preserving their version of the facts when an employer is reasonably seen to be building a false case against the employee or making unauthorized changes to their job that amount to constructive dismissal.

More generally, this case cautions employers against the dangers of making life difficult for troublesome employees by suspending them and changing their jobs. Major unilateral changes, particularly those with a financial impact, run a real risk of halting the employment relationship, with liability squarely on the employer.