Am I wrong? Secretly Recording Conversations in the Workplace – BC Supreme Court Finds Employer Had Cause to Terminate
By: Michelle QuinnIn Shalagin v Mercer Celgar Limited Partnership, 2022 BCSC 112, the plaintiff, Roman Shalagin (“Mr. Shalagin”) moved to Canada from Russia and obtained a Bachelor of Commerce degree and later became a Certified Professional Accountant (“CPA”).
He commenced employment with the defendant, Mercer Celgar Limited Partnership (the “Company” or “Mercer”), as a Financial Analyst on January 6, 2010. In 2016, he was promoted to Senior Financial Analyst.
On March 23, 2020, Mr. Shalagin met with Mercer’s Human Resources Manager and had a conversation about his [Mr. Shalagin’s] 2019 bonus. The plaintiff was upset about the calculation of his pending bonus.
On the same day, Mr. Shalagin also raised his concerns with his direct supervisor. Following the meeting, the plaintiff sent an email to his supervisor and Human Resources Manager in which he continued to challenge the Company’s view of the bonus determination formula and entitlement. In the email, Mr. Shalagin stated that he wished to resolve “this disagreement…without litigation”.
Troubled by the plaintiff’s email and the threat of litigation, the Company decided that they could no longer work with Mr. Shalagin, and decided to terminate his employment without cause on March 25, 2020. The plaintiff was 38 years of age at the time of termination.
Mr. Shalagin filed various legal proceedings including a wrongful dismissal action and human rights complaint with the BC Human Rights Tribunal. As part of his human rights proceeding, the plaintiff produced certain documents, including information about surreptitious recordings he had taken while employed with Mercer.
At his examination for discovery, he testified about further secret recordings. In particular, his evidence was that, throughout his tenure with Mercer, he had made recordings at one-on-one meetings including meetings with his supervisors and human resources personnel. His explanation for making the initial secret recordings was that they were designed to help him learn English.
He recorded the interactions with his supervisors and human resources because of his concerns pertaining to his rights, contractual entitlement to a bonus and discriminatory or bullying treatment towards him.
At discovery and trial, Mr. Shalagin testified that he did not ask permission to make these recordings because it was not illegal, but also because he was aware that “people would feel uncomfortable if they knew” they were being recorded.
Based on Mr. Shalagin’s post-termination conduct, Mercer’s position changed to termination for cause.
The Issue
The primary issue before the Court was whether the surreptitious recording of one’s fellow employees in the workplace constitutes cause for termination.
The Decision
At trial, Mr. Shalagin, while acknowledging that some recordings were unethical, argued that it is lawful to record conversations so long as one party to the conversation consents. The Court, however, had a different view:
The Court found that Mercer had established just cause and did not accept the plaintiff’s concerns about discrimination as no evidence supported these allegations:
He knew that his fellow employees would be uncomfortable with even these early recordings, yet he continued to make them. I find that he knew it was wrong, if not legally, at least ethically. The plaintiff’s professional obligations provide support for a finding that he did not conduct himself as an employed CPA should have done.
I accept that the plaintiff was not acting with malice in making the recordings and that this is a mitigating factor. However, the fact that his stated bases for the recordings were all unnecessary or ill-founded, and several were designed to benefit him alone, weighs on the other side of the ledger. Likewise, the fact that the recordings captured personal information from his subordinates and colleagues and, thus, could not have supported his alleged purposes in any case, also weighs against his position.
For more information about this post, or if you have any questions arising from this decision, email Michelle Quinn, Partner in the Employment and Human Rights Group at mquinn@rbs.ca or call at 604.661.9229.
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Parmar v. Tribe Management Inc., 2022 BCSC 1675 is the first civil court decision to tackle whether an unpaid leave of absence for noncompliance with an employer’s mandatory vaccination policy can be considered constructive dismissal. The issue before the Court was whether Tribe Management Inc.’s decision to place Ms. Parmar on an unpaid leave of absence was reasonable following the implementation of a mandatory vaccination policy given the circumstances of the COVID-19 pandemic at the time. Ms. Parmar refused to be vaccinated due to choice. She did not apply to her employer to be exempt from the mandatory vaccination policy based on medical or religious reasons. The BC Supreme Court found that it was not a constructive dismissal. Instead, it found that Ms. Parmar had repudiated the employment contract. As a result, the claim was dismissed, and Ms. Parmar was not entitled to any damages.
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Unfortunately, quite often terminated employees mistakenly believe that because their employer has offered them the minimum amount of severance pay (notice) under the BC Employment Standards Act that their legal entitlement ends there. Typically, that is not the case. In this post, we look at what it means to be wrongfully dismissed and whether a terminated employee is entitled to reasonable notice.
