Howard Levitt and Hani Shamsi
Many employees believe that they can “legally” tape record workplace conversations with their managers and coworkers. After all, unlike in the U.S., recording conversations is not a crime under Canada’s Criminal Code, provided the person doing the recording is part of the conversation.
But, except in rare instances, as we have written, recording workplace conversations, while not criminal, is still cause for discharge. This has often arisen in our own practice while acting for employers when an employee, in a “got you” moment, produces tapes of their workplace conversations. Our general reaction is to immediately amend the defence to plead cause for that employee’s discharge.
Termination with cause, especially for misconduct discovered post-termination, is rare and difficult. But the Supreme Court of British Columbia just affirmed our view in deciding that Roman Shalagin, a Certified Chartered Accountant and Mercer employee of 12 years, was properly terminated for cause because he had surreptitiously recorded numerous conversations with colleagues since 2010, especially since he acknowledged that he well knew that these recordings would make “people feel uncomfortable if they knew.”
Shalagin worked for Mercer as senior financial analyst. Although he had no employment contract, he was bound by Mercer’s Code of Business Conduct and Ethics, Confidentiality Policy, as well as the CPA Code as a professional...
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