Can Recording Your Coworkers Get You Fired?
Harassment at work can lead to a toxic work environment. It can be especially frustrating if it occurs “off the record”; verbally or physically, rather than over messages and emails that can be easily documented. Some may resort to recording instances of harassment at work to get tangible evidence. But it raises the questions: is this legal, and just as importantly, is this effective?
What does it mean to be a one-party consent province?
In Ontario, so long as one party in the conversation consents to a recording, then it is legal. You can record any conversation you are a part of, but you cannot record a conversation you are not involved in, without the permission of at least one of the parties.
There may be exceptions to the legality of the above, such as if it touches upon issues of confidentiality or is recorded in a sensitive area. For example, if the recording involves confidential information or is in a room where medical patients are given treatment, it could fall afoul of the law.
Can recording your coworkers get you fired?
Whether or not the workplace recording is illegal, it should be noted that provincially regulated employers in Ontario can terminate an employee whenever they want, so long as the employee is given proper notice or pay in lieu thereof, and the termination is not discriminatory or offside employment legislation in any other way.
The exceptions here are important. For example, if the termination is on the basis of a protected ground of discrimination, like gender, race, or sexuality, or if it is in reprisal to a complaint about harassment, there may be recourse to additional damages beyond pay in lieu of reasonable notice.
There is a potential argument that secretly making recordings at work could damage the trust required of an employment relationship enough to justify a termination for cause, i.e. without entitlements. While this is unlikely as it opens the employer up to liability for a claim of reprisal or discrimination, it is important to be aware of these possibilities.
Should you record your coworkers without telling them?
However, even if a workplace recording is legal, and it is brought forward as evidence in a tribunal or court hearing, it may be less compelling than you think. If the party against whom the recording is meant to implicate in harassment is not aware of the recording, it can be argued that the “recorder” is on notice to be on their best behaviour, while the party being recorded is not. A trier of fact may be hesitant to extrapolate the behaviour demonstrated in the recording beyond that specific incident.
This will not always be the case, but employees should be careful not to conceive workplace recordings as a “slam dunk” argument.
If you are in a situation where you feel it is necessary to record harassment at work, it has likely reached an intolerable level. An experienced employment lawyer can assess the situation and walk you through your best options going forward, including whether recordings would bolster your case. If you would like more information about how Whitten & Lublin can advise you regarding workplace harassment, please contact us online or by phone at (416) 640 2667 today.
Author – Sohrab Naderi