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.
-
The coronavirus pandemic has brought so much uncertainty with it and has turned the world of work on its head. Every employer is required to have a COVID-19 Safety Plan that assesses the risk of exposure at their workplace and implement measures to keep their workers safe. On November 24, 2020, BC issued a Public Health Order (the “Order”) requiring the use of masks in all public indoor spaces in the province. Since this Order, our Group has and continues to receive a lot of questions from business owners and employers on the mandatory masking order, in particular, what happens if an employee refuses to comply with an employer’s COVID-19 Safety Plan including an unwillingness to wear a face mask?
In this blog post, we consider whether an employer can terminate an employee’s employment for cause for refusing to wear a face mask while at work.
-
In addition to the amendments to the Employment Standards Act that were discussed in our last blog entry, the B.C. government has introduced a new Employer Health Tax (the “EHT”) in January of this year. The government hopes that the EHT will help their efforts to eliminate the Medical Service Plan premiums paid by all individuals. With this new tax, the government hopes to completely eliminate MSP premiums by January 2020.
