So often I am asked if it is legal to record one’s employer. Other times, I am asked whether one should record their employer.
I typically begin the conversation by differentiating what is legal and what is reasonable in the context of employment law.
In Ontario, we have one-party consent with respect to recordings which means that it is legal to record a conversation with your employer without their consent, as long as you are a participant in that conversation, consent to that conversation being recorded, and you were intended to receive the communication. It is illegal to secretly record someone else’s conversation for which you are not a participant or for which the other members of the conversation do not know that you are a participant.
With that said, it is important to keep in mind that just because it may be legal to record your employer in the sense that you won’t be sent to jail for doing so, it does not always mean that it is reasonable or acceptable in the workplace.
The courts have suggested that in some circumstances, surreptitiously recording your employer without their knowledge and consent, may be grounds for just cause. Feelings of trust and honesty between the employee and employer which, are foundational in the employment relationship, may be replaced by feelings of deceit and mistrust. In circumstances where the employer loses trust in the employee, serious misconduct may be proven in which case, the employee would have sufficient grounds to terminate the employment relationship for just cause.
However, there is no “one-size-fits-all” policy when it comes to secretly recording your employer and the reasons for doing so will certainly matter in determining whether recording one’s employer constitutes serious misconduct. For example, if an employee felt that they were a victim of bullying and/or harassment by management and the facts were contentious, there may be a justification for secretly recording one’s manager if the reason was meant to gather evidence of a toxic work environment. Recording your employer with the intention of whistleblowing may be another example of a situation where recording your employment may not constitute serious misconduct.
Ultimately, an employee can be dismissed for secretly recording a conversation with their employer at work. Whether or not the employer can terminate the employee with just cause will depend on the circumstances and whether the recording eroded the trust to the degree that the employee could not be trusted again.
Before recording your employer, it’s important to ask yourself, why are you recording your employer, what are you going to do with that recording and how will it help or hurt your situation. If you find yourself in a situation where you feel you are being bullied or harassed by your employer with few alternatives, it is a good idea to speak with an employment lawyer first before making that recording.
Lecker & Associates is a Toronto employment law firm that has fought for employees for over 35 years. We specialize as Employee lawyers and act as employee-side legal counsel. We have been involved in thousands of cases involving wrongful dismissal, constructive dismissal, employment law in Ontario, employment contracts, sexual harassment in the workplace, short and long-term disability claims.