Background

The employee worked for Mercer Celgar Limited Partnership for over 10 years and was a certified professional accountant at the time of his dismissal.

The employer initially dismissed him without cause, but reversed course after discovering that the employee had been secretly recording his colleagues.

Employment History

In March of 2020, the employee met separately with two managers about his 2019 bonus calculation. In those meetings, he argued that his bonus payment should be formula-based rather than discretionary. By way of follow-up, he sent them an email saying that he was open to resolving "this disagreement" internally and "without litigation".

Troubled by the apparent threat of litigation, the managers decided they could no longer work with the employee and terminated his employment without cause. The employee then filed an Employment Standards Act complaint, a human rights complaint alleging discrimination on the basis of his Russian heritage, and a wrongful dismissal claim.

In the wrongful dismissal claim, the employee argued that his manager had been dishonest with him in the bonus meeting and rude and dismissive of his concerns. He also alleged that the employer had terminated him in reprisal for complaining about the bonus.

Through disclosure in the human rights complaint, the employer learned that the employee had taken over 135 secret recordings of his colleagues' conversations during his employment.

The employee said the initial recordings were to help him learn English, but later he made the recordings to document possible violations of his human rights. The recordings included information about his manager's private family matters and captured other personal conversations with his subordinates and peers. He did not share the secret recordings with anyone other than the B.C. Human Rights Tribunal and the employer.

Armed with this new information, the employer changed its defence tactics in the wrongful dismissal suit and argued that the recordings gave it just cause for the employee's termination.

What did the Court Decide?

The court held that the secret recordings had fundamentally ruptured the employement relationship. As a result, the employer was justified in terminating the employee's employment for just cause.

Key factors that the court relied on to reach its conclusion were:

1. the employee admitted that he knew the other employees would be uncomfortable with the recordings;
2. the recordings were contrary to the employer's policies, including the Code of Business Conduct and confidentiality policy, which required the employee to act with honesty and integrity in carrying out his duties;
3. the large number of recordings;
4. the recordings included sensitive conversations that involved his colleagues' personal information;
5. other employees felt violated by the recordings;
6. the employee's justification for making the recordings was not satisfactory since his concerns about discrimination, financial improprieties, and his bonus calculation were unfounded; and
7. accepting the employee's argument may encourage other employees who feel mistreated at work to start secretly recording co-workers.

Takeaways

An employer may be able to justify an employee's termination for cause when an employee takes secret recordings at work, even if the employer was unaware of the recordings at the time of dismissal. Key factors that will be considered by the court include whether the recordings are contrary to employer policies, the volume of the recordings, the sensitivity of the information being recorded, and what justification the employee gives for making the recordings.

Note: This a reprint of an article by Matthew Allard of Fasken.