Secret tapes in the workplace: Dismissal of senior analyst over covert recording upheld on appeal

An audio wave on a computer screen. Photo: Edward Olive/Canva

In a case that has put the spotlight on the ethical implications of secretly recording workplace conversations, a former senior financial analyst at Mercer Celgar Limited Partnership, a pulp and paper mill in Castlegar, B.C., has had his dismissal upheld by the appellate court.

AS, who emigrated from Russia to Canada in 2002 and later became a Chartered Professional Accountant (CPA), was employed by Mercer from Jan. 6, 2010, until his termination on March 25, 2020. Throughout his tenure, he climbed the ranks, holding the title of senior financial analyst by 2019, complete with bonus entitlements.

Yet his professional journey was marked by a series of covert recordings he made between 2010 and 2019.

Initially, AS began the recordings to improve his English, which the trial judge noted may not have constituted cause for dismissal. Over time, however, his purpose evolved as he sought to capture potential evidence of discriminatory or unfair treatment, especially from his then-supervisor. Despite his claims, no formal complaint against that supervisor ever materialized.

In 2019 and 2020, AS’ relationship with Mercer’s management deteriorated. He raised concerns over a series of work-related issues, including a perceived exclusion from a pay raise, reconciliation disputes over financial statements, and allegations of deceit surrounding bonus determinations.

Profound level of ‘untrustworthiness’

Mercer initially dismissed AS “without cause.” However, when it came to light during a Human Rights Tribunal hearing that he had been secretly recording various meetings, training sessions, and conversations with coworkers for nearly a decade, Mercer updated its stance. They argued that these recordings displayed a profound level of “untrustworthiness,” undermining the foundational trust within the employer-employee relationship.

Central to the case was whether these covert recordings, which contained sensitive company information, constituted valid grounds for his termination. AS pointed to past cases where employees documented confidential information to protect their rights against perceived workplace injustices. However, the court determined that his primary motivation wasn’t to defend his rights but to potentially leverage incriminating statements for future grievances.

The trial judge emphasized the severe implications of behaviour that fundamentally breaches the employment relationship. Drawing on case law and the evidence at hand, he ruled that the secret recordings were adequate grounds for his dismissal.

The appeal court weighs in

On appeal, the Court of Appeal for British Columbia meticulously reviewed the trial judge’s application of the just cause test and his reference to public policy. It, too, took a dim view of the recordings.

“The recording activity was underhanded and would be regarded by most employers as misconduct undermining the trust relationship between employer and employee,” it said. “It also violated the privacy interests of persons who were recorded, as well as those who were discussed in the recordings.”

It noted the recordings went on for nearly a decade, and did not stop when the supervisor who he had a problem with left the company. AS would routinely record conversations he had with HR or another manager.

“None of these conversations had any relationship to his place of origin or other protected grounds of discrimination,” the appeal court said. “Instead they related to his complaints that the financial statements for 2018 were defective, that (another worker) should have higher pay for her maternity leave, and that the bonus program was not ‘discretionary.'”

The court found that the trial judge’s decision was consistent with established legal standards. AS’ appeal was ultimately dismissed, cementing the ruling that the recordings provided just cause for his termination.

For more information, see Shalagin v. Mercer Celgar Limited Partnership, 2023 BCCA 373 (CanLII)

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