By Mark Swartz
He said this. I said that. He’s lying. I’m not. Hardly an effective way to arbitrate a dispute with an employee. Yet so often their undocumented word against the manager’s is the only evidence available.
Shouldn’t managers be secretly recording troublesome conversations? That way they’d have hard proof of what occurred. It would no longer come down to each accuser’s credibility. Seems like a sensible solution. Except it may not be.
This problem is much more common due to mobile phone use. A silent click on Record is all it takes to open up a hornet’s nest of possible legal issues.
Can Managers Record Subordinates?
A manger acting as the representative of their employer is bound by certain conditions. The company’s policy may prescribe whether recordings can be made (also if and when they can be used).
More importantly there are legalities to abide by. Privacy legislation impacts how employers collect, use and disclose the personal information of their employees. This applies even if an employee is causing damage or you’re trying to prevent their sabotage.
Furthermore the courts have rules about admissibility of evidence. These may preclude the use of recordings despite all the involved parties having given prior consent.
Confusing? Let’s try to make this a little more straightforward.
How Privacy Laws Apply
Where the employer is located, and depending whether they’re provincially or federally regulated, a provincial privacy act or the federal Personal Information Protection and Electronic Documents Act (PIPEDA) addresses the collection, use and disclosure of personal employee information.
Any employer seeking to monitor employees – either by voice recording, video, keyboard tracking – should have a clear written policy. That policy needs to be signed and agreed to by employees.
Such a policy would establish that staff should not have any expectation of privacy, and that the employer’s use of the information may be for performance, conduct and workplace security monitoring. On top of this, rationales for gathering information in that way must be reasonable. That’s not a guarantee, though, of legal immunity for the employer.
Creating a Hostile Work Environment
A recorded version of what was said in conversations can solidify the facts of a case, particularly where an employee may be fired for just cause. But if your staff knows you secretly record meetings or private conversations, this could create a hostile or toxic work environment.
As one example, the British Columbia Court of Appeal frowned upon an employer recording his conversation with an employee, saying it irreparably harmed the employee/employer relationship.
Undisclosed recording could constitute a breach of privacy (“intrusion upon seclusion”) or a breach of trust which could arguably constitute constructive dismissal.
Not All Recordings Are Admissible As Evidence
The affected employee could attempt to have any recordings barred as evidence in a court case against them. In a work performance, insubordination, grievance or related proceeding, it’s tough to enforce discipline or sustain a termination for just cause if the collection of the information is found to be improper or unreasonable. In much of Canada the law remains unsettled on this issue.
Use Witnesses and Notes Instead
Despite newfangled technology, old-style note taking – and having a witness present during controversial conversations – may still be the best defense.
At performance reviews, disciplinary or dismissal meetings, having two employer-side people present provides a witness who can take detailed notes. Compared to secretly recording the session it’s a sign of workplace respect and civility. As well the witness statement and notes may be less likely to be deemed inadmissible, unless that witness can be shown to harbour malice toward the employee.
It is in your best interest to seek advice from a qualified employment lawyer in labour matters. Your good intention to preserve conversations accurately by recording them could lead to further difficulties. There are indeed times when such recordings are permitted and actually encouraged.
However without knowing which laws and regulations apply, you put your employer at unnecessary risk.
The Best Answer to Employee Problems is a Strong Hiring Process
If you’re having to deal with personnel problems, you’re not alone. This can be one of the hardest areas for employers to manage. One way to get ahead of the problem is by making sure your hiring process is bringing in the right candidates. Start finding the right people for your business today by posting your next job for free.