There can be legitimate times when an employee will make a recording in a workplace. However, most legitimate workplace recordings are made with the consent of the parties involved. Typically, an employee will only make a secret recording if there is a workplace issue, and they want to collect evidence ahead of time.

It is not against the Criminal Code for an employee to secretly record their employer if they are part of the conversation that is recorded. Section 184 of the Criminal Code states that it is illegal to make recordings without the knowledge or consent of the parties. However, that section also provides an exemption that permits a recording if one of the parties in the conversation consents to the recording. That means that if the employee who is making the secret recording, which they obviously consent to, participates in the conversation, then they did not commit a crime. However, if an employee plants a device to record conversations or events that they are not a participant in, without the consent of the parties involved in the said event, they could be criminally charged. If there is an attempt to secretly record something sexual in nature, such as secretly filming the washroom, it is appropriate to immediately call an employment lawyer and possibly the police.

Despite most secret recordings not being a criminal offence, it can still be considered for discipline in the employment law context. A secret recording is likely a breach of trust with the employer, who reasonably expects that the conversations that they have with their employees remain confidential. Whether a recording is serious enough to justify a just cause termination depends on the severity and amount of the secret recordings. To justify a just cause termination for a secret recording, the employer would need to be able to prove that the secret recording has resulted in a complete loss of faith/trust in the employee. However, termination without just cause would still be justified in the circumstances, if done correctly. However, before resorting to disciplining or terminating an employee for making a secret recording, it is important to speak to an employment lawyer. A reckless decision could result in costly consequences when it comes to disciplining or terminating an employee.

Recently, the question of whether a secret workplace recording would be admitted to court was answered in Rooney v GSL Chevrolet Cadillac Ltd, 2022 ABKB 813. In that case, Edward Rooney (the employee) commenced an action against his employer claiming that he was constructively dismissed when the employer made a new department at his workplace. The new department resulted in less work for Rooney because he was paid for the work he completed. One of the issues, in that case, was that Rooney secretly recorded a meeting with his manager, who was explaining why the new department was being created, and Rooney sought to rely on that evidence in court. The judge went with the traditional rule of evidence, that if it helps the trier of fact, which the judge determined was the case, it is admissible. The judge left room for higher courts or the legislature to change the admissibility of secret recordings on policy grounds. However, currently, a secret workplace recording is admissible in court if it helps the trier of fact determine the facts of the case.

How Suzanne Desrosiers Professional Corporation can help

As noted a few times in this blog, if you notice that an employee is making secret recordings in the workplace you should call an employment lawyer. Often, there is already an issue going on at work that is causing the employee to secretly record the workplace. Making a rash decision could lead to costly consequences.

Here at Suzanne Desrosiers Professional Corporation, we have employment lawyers who can help advise you on what to do when an employee is secretly recording your workplace based on the unique elements of your situation. You can reach one of our employment lawyers by calling us at (705) 268-6492 or emailing us at info@sdlawtimmins.com.