The advent of the smartphone has led to a reality in which many people have cameras in their pockets at all times. In addition to their popular uses for taking photos and videos of family and friends, phones can also be used to record private moments or conversations. In the employment world, they can be used to record meetings amongst employees and/or management without the knowledge of all involved. 

In a recent decision from the court of King’s Bench of Alberta, the court was asked to determine whether a conversation between management and an employee which the employee recorded without management’s knowledge or consent could be admitted into evidence in a trial regarding constructive dismissal.  

Car dealership employee says he was victim of constructive dismissal

The employee worked for the employer’s car dealership from 2000 until early 2010. He worked primarily as a drivability technician, also referred to as a diagnostic technician and was responsible for diagnosing issues concerning the engines of cars belonging to the employer’s customers. In addition to his work as a drivability technician, the employee also did electrical and air conditioning work. However, this work gave way to drivability technician work at the request of the employer.

In 2009 the employer determined they wanted more than one employee with the skills necessary to perform drivability technician work. The employer decided they would formalize this work and created a drivability department. This meant the employee would no longer be the only person performing that work. By early 2010 something had yet to be formalized, though the general scope of the changes had been explained to the employee verbally. 

In the first few months of 2010, the employee told the court he started to notice that two of his colleagues were getting work that would have typically been assigned to him. He was also more relaxed than he was used to being at work. 

Employee records conversations between him and management

It was in March 2010 that the changes to the drivability department were explained in clear terms to the employee. The employee decided to record that conversation. In that conversation, the employee was told that his two colleagues were being trained because the employer was concerned with what would happen if he were to leave (he was nearing retirement age). They did not have anyone else qualified to do that work. The employer had recently started to service a new brand of car, and none of the employees were trained to do work on those. The employer did not make clear that the employee’s income would be reduced due to the inclusion of other people in the department. Still, the evidence provided to the court showed that his income dropped by $12,000 over a four-month period. 

The employer argued that the recording of the meeting between them and the employee should not be admitted as evidence. The grounds cited by the employer included:

1. The recordings are of poor quality and some parts cannot be heard
2. As a matter of public policy, workplace recordings should not be admissible because it leads to an undermining of the employee-employer relationship. 

Additionally, the employer took the position that even if the recordings were to be admitted into evidence, the employee’s recording of the conversations gave them cause to terminate him.

The court determined that the recordings should be admitted as evidence. The court wrote that the recording was of reasonable quality and easy to understand and that the only parts that were unclear were sections where people were talking over one another. 

In addition, the employer admitted that they had reviewed the tapes and confirmed the accuracy of what they contained. This left the court with no reason to doubt their accuracy.

Was the employee a victim of constructive dismissal?

Since there was no written contract between the parties, the court had to determine the relevant terms of the contract. The court found that one of these terms was that the employee was the principal drivability technician. This stemmed partly from their request in 2000 that he focus on drivability to the exclusion of other duties. He made more money in this position than technicians in other departments because he had to remain on call when needed instead of only when there was work. 

The court found that opening the drivability department was a unilateral and fundamental change in the employee’s employment. Not only did it reduce the amount of drivability work available to the employee, but it also led to a significant reduction in compensation. 

The court went on to state that the employee did not acquiesce to the changes in terms of his employment and that these changes were not described in any detail to him until months after they had been put in place. While it’s natural for the employer to want to put a succession plan in place, it did not mean that they were entitled to make unilateral changes to the employee’s contract that also included negative financial impacts. 

HMC Lawyers can help you with wrongful dismissal and constructive dismissal claims

The employment law team at HMC lawyers prides itself on helping our clients address their employment law needs in a forward-thinking process, working to proactively address the legal implications that may arise from termination from the workplace. We understand the stress people face when they lose their jobs and offer exceptional advice at reasonable rates, giving our clients the peace of mind that they are receiving the best possible legal advice while saving money. If you have recently been dismissed from your job, it is important to talk with an employment lawyer as soon as possible so that a full range of legal options can be explored. To make an appointment and get advice about an employment matter, including wrongful or constructive dismissal claims, call 1-800-480-3534 or contact us online. We represent clients in Calgary, throughout Alberta, and across Western Canada.