In its recent decision, Shalagin v. Mercer Celgar Limited Partnership, 2023 BCCA 373, the British Columbia Court of Appeal confirmed that surreptitious recordings by an employee may constitute just cause for termination.
BACKGROUND AND FACTS
The Plaintiff was a certified professional accountant (CPA) who was employed by Mercer Celgar Limited Partnership (the Employer) as a financial analyst. In 2020, after 10 years of employment, the Employer terminated the Plaintiff on a without cause basis.
Following his termination, the Plaintiff filed a wrongful dismissal action in the Supreme Court of British Columbia, as well an employment standards and human rights complaint. During the legal proceedings, the Plaintiff disclosed various documents which revealed that he had made hundreds of surreptitious recordings in the workplace over the course of his 10-year tenure with the Employer. The recordings included recordings of one-on-one sessions, meetings with managers and human resources personnel, toolbox meetings, as well as conversations with colleagues.
After learning about the recordings, the Employer amended its pleadings in the wrongful dismissal action to allege that the recordings demonstrated a character of untrustworthiness that was incompatible with continued employment and constituted after-acquired cause for the Plaintiff's dismissal.
SUPREME COURT DECISION
The central issue at trial was whether the Plaintiff's conduct in making the surreptitious recordings constituted just cause for termination. The trial judge concluded that the Plaintiff's conduct in making the recordings undermined the relationship of trust between the Plaintiff and the Employer and constituted just cause for termination. The following factors supported the finding of just cause:
- the Plaintiff knew that the conduct was ethically wrong;
- as a CPA, the Plaintiff was expected to respect the standards established by his profession;
- there was no legitimate basis for the Plaintiff to make the recordings and the recordings were used solely for the Plaintiff's advantage;
- the recordings violated the privacy interests of those who were recorded and those discussed in the recordings; and
- from a policy perspective, it would not be a positive development to encourage employees to secretly record their co-workers.
With respect to the "after-acquired cause", the trial judge noted that the misconduct must be something that was unknown, and something could not have been reasonably discovered by the employer, at the time of termination. The trial judge accepted that due to the clandestine nature of the recordings the Employer could not have discovered them prior to the termination and, as a result, the recordings could form the basis for after-acquired cause.
BCCA DECISION
The Plaintiff appealed the decision to the British Columbia Court of Appeal on the basis that the trial judge erred in applying the just cause test.
The British Columbia Court of Appeal reviewed the trial judge's decision and the application of the just cause test. The Court of Appeal held that the trial judge's decision was consistent with established legal standards relating to just cause. In particular, the Court of Appeal found that the trial judge adopted an approach that analyzed the circumstances surrounding the employee's behavior and did not apply an "absolute" or "strict" rule in determining just cause. The Court of Appeal held that the trial judge's nuanced perspective recognized that the assessment of just cause required a context-sensitive examination of the employee's actions.
With respect to the recordings, the Court of Appeal found that "the recording activity was underhanded and would be regarded by most employers as misconduct undermining the trust relationship between employers and employees." In addition, the Court of Appeal supported the proposition that the recordings violated the privacy interests of persons who were recorded as well as those who were discussed in the recordings.
The Court of Appeal upheld the trial judge's decision and dismissed the appeal.
KEY TAKEAWAYS
This decision emphasizes the importance that the court places on the privacy rights of individuals and employees and serves as a reminder that an employee's actions, especially those that infringe upon trust and privacy, can indeed constitute just cause for termination
While each case is unique and must be evaluated on its own merits, the decision supports that making surreptitious recordings in the workplace may constitute just cause for termination.
Finally, this case also confirms that in the appropriate circumstances, pre-termination misconduct which could not have reasonably been discovered during the employment relationship may provide a basis for asserting after-acquired cause.
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