With smartphones and other small, portable electronics having become such a common part of modern life, it can be easy to get used to using modern technology in our everyday lives. But just because technology is available to us, it does not necessarily follow suit that it is always appropriate to take advantage of it. A recent decision from the Supreme Court of Yukon warns employees against the use smartphones to record conversations in the workplace.

The employment history

The employee began working for the employer, the Yukon Government, on May 10, 2017 in the role of Senior Business Development Advisor. His position started with a six-month probationary period, which was extended a further six months into May 2018. He was notified of the extension towards the end of his probationary period, and was told it was being extended due to his job performance to date. The meeting included both his manager and the Assistant Deputy Minister (“ADM”). His manager “indicated to (the employee) that the extension was not punitive, but was intended to address issues such as (the employee’s) ability to listen, his ‘taking over’ of meetings, and getting to understand the needs and interests of the department’s clients. (The manager) indicated (the employee’s) communication style was being perceived by others as ‘aggressive’.”

Immediately following that meeting, the employee met with the ADM alone. During this meeting, in which the employee was described as “clearly agitated” he showed the ADM a list of quotes he had on his cell phone, which were described as statements made by his supervisor and other co-workers. The ADM was under the impression that the quotes were presented in order to threaten the ADM into rescinding the extended probationary period.

Later that same day, the employee sent an email to the Deputy Minister (“DM”), copying the ADM and the Minister. In the letter, he admitted that he had been documenting and recording his conversations and meetings “with all internal and external stakeholders.” He complained that his job performance had not been properly assessed.

The employee received a letter from the DM five days after the meetings (November 8, 2017) in which he was told he was being released from his probation, meaning he was being fired. The letter made mention of the recordings made by the employee, stating the “digital recording of meetings and conversations without consent was ‘highly inappropriate’ and had ‘irreparably damaged the (employer’s) trust and confidence in [him] as an employee’.” The employee, who was unionized, challenged his termination and ultimately sought judicial review.

Publishing of recordings

Beginning on November 30, 2017 and extending through March 8, 2018, the employee published information from his secret recordings of his supervisor and co-workers through a Twitter account, his website, and through email. There were approximately 28  publications, some of which included links to actual recordings and transcripts.

The case before the Supreme Court of Yukon

The employee attempted to argue that he had not been properly evaluated during his probationary period, and that the was fired for “blowing the whistle” on the actions of his co-workers and supervisors. The court did not buy it. In its decision, the court wrote,

“(The employer) had a legitimate employment-related reason to reject (the employee) on probation. This was the complete breakdown of the relationship of trust between him and his employer as a result of the secret digital recordings he had made since the commencement of his employment. While one might argue that such conduct might also be grounds for disciplinary action, it is clear from the evidence that (the employer) elected to reject (the employee) on probation rather than take disciplinary action. It had every right to do so.”

The court’s decision went further than determining the employer had a right to extend the employee’s probation. In addition to that, the court also found that the unauthorized secret recordings of conversations at work can be a reason for termination.

The highly experienced employment law team at HMC Law represents employers and employees in all matters of employment law, including cases of  wrongful and constructive dismissal. We are able to help employers ensure the decisions they make are in accordance with their obligations under the law. We also assist employees in determining whether or not their rights may have been violated, as well as what their obligations to employers are. Contact HMC Law online or by phone at 403-269-7220 if you have an employment law issue.