On October 6, 2023, the British Columbia Court of Appeal upheld1 the termination of employment for just cause of an employee who made numerous surreptitious recordings for approximately 10 years during the course of his employment, even though the employee's employment was originally terminated without cause.

Background

The employee was a financial analyst and a Chartered Professional Accountant (CPA). His employment was terminated without cause on March 25, 2020. The employee commenced several legal proceedings following the end of his employment; a human rights complaint, a complaint under the Employment Standards Act, and a wrongful dismissal action in the B.C. Supreme Court.

During the course of the proceedings at the human rights tribunal, the employee revealed that he had surreptitiously recorded many conversations in the workplace. In fact, he had recorded over 100 "Toolbox Talk" meetings, 30 meetings with human resources personnel, as well as accidentally "picked up" other conversations with colleagues when he allegedly forgot to turn the recording function on his phone off.

Upon discovery of these surreptitious recordings, the employer amended its position and asserted that it had just cause to terminate the employee.

The employee claimed that he made the initial recordings to improve his proficiency in English. The employee claimed that the later recordings were made because he had concerns about discrimination and bullying in the workplace, the company's financial improprieties, and his entitlement to incentive compensation.

The Trial Judge's Decision

The trial judge found that, over time, the employee's sensitivities towards his colleagues' privacy began to loosen as he continued a pattern of recording conversations, including recordings that captured personal details about his colleagues that had nothing to do with the workplace. Despite the various explanations that the employee provided, the trial judge found that there was no legitimate basis for making the recordings. Specifically, there was no basis for the employee to fear discrimination, no evidence of financial misconduct, and no misapplication of the terms of the incentive plan.

The trial judge found that the employee knew that making these surreptitious records was ethically wrong. Further, the trial judge found that some of the recordings were made solely for the advantage of the plaintiff and that such recordings did not respect the standards established by his profession as a CPA. Additionally, the trial judge noted that the employees, whose conversations were recorded, reasonably felt violated by these recordings.

With respect to the after-acquired grounds for dismissal, the trial judge acknowledged that this was not the type of case where the late discovery of the facts grounding the just cause claim mattered, given the clandestine nature of the recordings. This meant that the employer had no real ability to discover the existence of the recordings until after the employee's termination.

Finally, the trial judge remarked that a decision that condoned this employee's behaviour may encourage other employees who feel mistreated at work to routinely start secretly recording their colleagues. The trial judge stated that "this would not be a positive development from a policy perspective" given the Supreme Court of Canada's recent pronouncements that privacy issues have quasi-constitutional status.

The Court of Appeal's Decision

The Court of Appeal affirmed the trial judge's findings that the employee's surreptitious recording activity was underhanded and constituted misconduct undermining the trust relationship between an employer and an employee. It also violated the privacy interests of persons who were recorded as well as those who were discussed in the recordings. The Court of Appeal also endorsed the trial judge's comments in relying on "public policy" reasons as a relevant factor in the upholding the termination for just cause.

Conclusion

For an employer to prove just cause at termination, it must demonstrate, using a contextual approach, that the nature and degree of the dishonesty warranted a dismissal. Each case turns on its own facts. In this case, the trial judge found that the lack of a reasonable basis for making the surreptitious recordings, the sheer volume of the recordings, the personal information contained in the surreptitious recordings, and the length of time over which the recordings occurred all weighed against the employee.

Footnote

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