A recent decision from the Manitoba Court of Queen's Bench supports that an employee's use of his work phone to secretly record meetings with management may support an employer's decision to terminate for just cause.
In Hart v. Parrish & Heimbecker, Limited [Hart], the plaintiff, Mark Hart, sued his former employer for wrongful dismissal after he was terminated for cause following a series of employee complaints against him. In the course of the litigation, Mr. Hart tendered as evidence recordings of conversations he had had with the defendant's management personnel in the course of the defendant's investigation into the employee complaints, which the defendant was not aware of at the time of dismissal. During the course of the litigation, in addition to its reliance on Mr. Hart's conduct with respect to the employee complaints as just cause for dismissal, the defendant employer also alleged after-acquired cause based on the surreptitious recordings. The defendant submitted the recordings amounted to a breach of confidentiality and trust and of the personal code of conduct Hart had created following employment counseling sessions.
With respect to the complaints made against Mr. Hart – which were generally concerned with Mr. Hart's unprofessional, rude and aggressive conduct at work – the court found that the complaints were serious and amounted to breaches of the defendant's employee handbook and its anti-harassment policies. The court concluded that the defendant had addressed the complaints appropriately with Mr. Hart, coached him on appropriate workplace behaviour, sent him for professional workplace counseling when matters escalated and otherwise conveyed to Mr. Hart that improvement was necessary or consequences would follow. The court found that the defendant's failure to specifically warn Mr. Hart that he would be dismissed if his conduct did not improve was not fatal to the employer's reliance on just cause. As the court put it:
...it is not necessary to specifically warn an employee that he/she will be dismissed if certain objectionable behaviour occurs again, where a reasonable person would know or ought to know that the conduct is inappropriate, contrary to the defendant's policies and may result in termination.
With respect to Mr. Hart's secret recording of meetings, the court agreed that Mr. Hart had breached his confidentiality and privacy obligations to the defendant and that the recordings also amounted to a breach of the "personal code of conduct" that Mr. Hart had prepared following his employment counseling. While the court accepted that Mr. Hart's secret recordings amounted to a breach of his employment obligations and were properly considered pursuant to the doctrine of after-acquired cause, this misconduct was simply a factor in the contextual assessment of just cause and the court considered that Mr. Hart's misconduct at the time of dismissal was sufficient to establish just cause.
This case is a positive one for employers for a number of reasons.
- With respect to the employee complaints and the employer's response, it supports that a formal warning of potential termination is not necessary if the circumstances are such that an employee ought to know what is expected and the consequences that may follow for falling below the expected level of workplace behaviour.
- Secondly, the case recognizes the obligations of employees to make appropriate use of phones at work, which may include not secretly recording management meetings, and that this form of misconduct may contribute to an employer's conclusion that it has just cause for dismissal, even if discovered after termination.
- Thirdly, the case is a good reminder to review and update your workplace policies to ensure they restrict employees' use of work phones to appropriate conduct. Given the ubiquity of personal or workplace phones with recording capabilities, the reminder and potential restriction on misuse of such devices that emanates from the court's decision in Hart is a helpful one.
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