A worker at a Calgary car dealership did not breach his employment agreement by secretly recording audio during meetings with his bosses, the Court of King’s Bench of Alberta has ruled.
Edward Rooney claimed he was constructively dismissed by GSL Chev City after it developed a succession plan that fundamentally changed the nature of his employment and resulted in a decrease in his compensation.
He also said he was suspended without pay, despite his employer not having the authority to do so.
The recordings
At trial, GSL sought to amended its statement of defence to allege that Rooney had been fired for cause. It said that, by recording his supervisors without their knowledge or consent, he breached the terms of his employment agreement.
GSL was unaware of the recordings until after his employment ended, and the court called it an “allegation of after-acquired cause.”
GSL objected to the recordings, calling them inadmissible for a number of reasons. First, they were of poor quality and inaudible in parts. Second, it argued that workplace recordings should not be admissible as a matter of public policy because it would encourage secretive recordings and undermine employer-employee relationships.
The court, though, said the recordings were of reasonable quality and easy to understand. There were times when it was difficult to hear what was being said, because people were talking over each other, “but this is the nature of human conversations and not the fault of the recording,” it said.
GSL also pointed to a couple of blank spots in the recordings, which raised questions about whether or not they had been altered.
But the people who had been recorded (minus one employee who had left GSL) confirmed the tapes were accurate. And the court accepted Rooney’s evidence that he did not alter the recordings in any way.
Legally versus illegally obtained recordings
The court said many of the cases that deal with admissibility of surreptitious recordings deals with illegally obtained ones. For example, the Criminal Code prohibits the interception and recording of a conversation by a stranger to the conversation.
“The recordings made by Mr. Rooney are different,” it said.
“They are the recordings of conversations between himself and his supervisors. A participant in a conversation may record that conversation without the consent of other participants in the conversation.”
The court did acknowledge that recordings have the potential to undermine trust in the workplace, something noted in the case of British Columbia Government and Service Employees’ Union v British Columbia Public Service Agency, 2016 CanLII 77600 (BCLA). That case, though, stopped short of holding that surreptitious recordings in the workplace are always improper.
“The exceptions when surreptitious recordings are considered to have been warranted and admissible include circumstances when persons in the employment or broader relationship making and tendering the recording had to resort to surreptitious recording to deal with a relationship power imbalance in order to objectively establish their credibility in the face of being accused of being a perpetrator or liar, rather than a victim,” the arbitrator said.
In this case, Rooney suspected he was being constructively dismissed.
“His employer had suspended him without pay and he had reason to be concerned that he was being portrayed as problem employee,” the Court of King’s Bench said.
“Mr. Rooney’s resort to recording conversations with his supervisor occurred after the employment relationship had broken down – even though he was not yet fully aware of the financial impact of the break down – and was warranted in the circumstances.”
The award
While HR Law Canada doesn’t break down the constructive dismissal ruling in this article, Rooney won his case.
The court awarded him 18 months’ pay in lieu of notice. That came to $185,075.74 in damages plus an additional $460 for unpaid vacation pay.
For more information, see Rooney v GSL Chevrolet Cadillac Ltd, 2022 ABKB 813 (CanLII)
