A common question many employees have is whether they can record conversations in the workplace. This question is usually within the context of a workplace dispute. For instance, the employee may feel belittled or bullied by a co-worker or superior and desire to record conversations that take place in order to “prove” that they have been bullied or belittled. Sometimes the employee will advise that co-worker or superior that they will be recording the said conversation. Other times, the employee will simply record the conversation and not set out to the co-worker or superior that they are doing so.
We offer a caveat with respect to recording conversations at the workplace. The first is that secretly or covertly recording a conversation that the employee is not a part of is a crime. Therefore, please do not do so or risk sanction under the Criminal Code.
The second caveat is that while to record a conversation that the employee is a part of may not be a crime regardless of whether or not the employee sought consent of the other party, it is imperative that the employee proceed with extreme caution when doing so. This is because the employer may see such an act as a breach of trust or confidentiality and may even decide to dismiss that employee for cause because of those recordings. The employer may also have a policy prohibiting the secret recording of conversations in the workplace.
For instance, in Hart v. Parrish & Heimbecker Ltd., 2017 MBQB 26, an employee sought damages for wrongful dismissal against their employer. The employer alleged that they had just cause to terminate his employment. The employee was found to have secretly made recordings of in-person meetings between himself and others at his workplace. The judge held in that decision that his conduct amounted to a violation of his confidentiality and privacy obligations to his employer. The employee’s claim for wrongful dismissal was dismissed.
In general, if an employee desires to record a conversation between themselves and another at work, it strongly advisable for that employee to clearly set out to all involved that they will be recording the conversation and to seek their consent prior to doing so. It is not a good idea to secretly record conversations at the workplace without the consent of the parties participating in that conversation because the legality and the implications of such an act are more complicated than first assumed.