In the recent and noteworthy decision of Shalagin v. Mercer Celgar Limited Partnership, 2022 BCSC 112, the Supreme Court of British Columbia found that the surreptitious recording of one’s fellow employees was cause for dismissal.
Summary of Facts
The Plaintiff was employed as a financial analyst for Mercer Celgar Limited Partnership (the “Company”).
In March of 2020, the Plaintiff began to raise concerns regarding the 2019 bonus payment he was scheduled to receive, arguing with the Company’s Human Resources Manager and his supervisor about the bonus. After these meetings, the Plaintiff emailed the Company seeking resolution, while also mentioning the possibility of litigation. Troubled by this behaviour, the Company decided they could no longer work with the Plaintiff and so terminated the Plaintiff without cause on March 25, 2020.
The Plaintiff commenced a court action seeking additional severance, and also filed human rights and employment standards complaints. As part of those proceedings, the Plaintiff disclosed various documents, and in the process revealed that he had made hundreds of surreptitious recordings of conversations with colleagues and superiors during his 10 years of employment with the Company.
The Plaintiff explained that the recordings were to help him learn English, as well as to protect his rights. The Plaintiff admitted that he did not disclose the recordings while employed as he was aware it would make his colleagues uncomfortable, and that the recordings contained confidential company information as well as personal information about colleagues.
After learning of these recordings, the Company changed its position, arguing that they had after-acquired cause to dismiss the Plaintiff, stating that the surreptitious recordings constituted misconduct which a reasonable employer could not be expected to overlook.
Surreptitious Recordings Constitute Cause
In this case, there was no dispute that the recordings were made. The central issue was whether the misconduct at issue amounted to cause. In other words, whether the surreptitious recording of colleagues resulted in a breakdown in the trust required in the employment relationship.
Although the Plaintiff did not publish the recordings or seek to use of them outside of the legal proceedings, the following aggravating factors were noted by the Court:
- the Plaintiff knew the recordings were wrong ethically;
- the Plaintiff did not conduct himself as a professional in a position of high authority;
- there was no legitimate basis for the Plaintiff to make the recordings;
- the sheer volume of the recordings and length of time over which they occurred;
- the recordings captured personal information from subordinates and colleagues; and
- from a policy perspective, it would not be a positive development to encourage employees to secretly record colleagues and supervisors.
In the end, the Court concluded that the trust relationship fractured by the Plaintiff’s conduct. The Court found that the Company established cause for the Plaintiff’s termination based on the surreptitious recordings, and therefore the Plaintiff’s claim was dismissed.
Takeaways for Employers
Although misconduct will always be considered in the context of the specific employment relationship at issue, this decision supports that surreptitiously recording co-workers, particularly without legitimate grounds, may constitute cause for termination. This case also serves as an important reminder that pre-termination misconduct that could not have reasonably been discovered during the employment relationship may provide a basis for asserting after-acquired cause, even if the employer did not assert cause in the first instance.
If you have any questions about this article, please contact Nicole Toye or your Harris lawyer.
