Court notes he recorded workplace conversations to 'improve his English'
A financial analyst recently argued that he was terminated by his employer without cause, coupled with discrimination allegations, leading to multiple lawsuits.
However, during the proceedings, it was revealed that the worker had secretly recorded numerous conversations with supervisors and colleagues spanning a decade of employment.
In response, the employer argued that such misconduct should be considered as a valid cause for the termination, a claim that the trial judge upheld.
He then challenged the trial judge’s decision. In his appeal to the Court of Appeal for British Columbia, the worker claimed discrimination based on his national origin.
The worker, who immigrated from Russia around 2002, acquired his education and learned English in Canada. He holds a Bachelor of Commerce degree from the University of Northern British Columbia and became a Chartered Professional Accountant (CPA).
Employed as a financial analyst at the employer, he had access to the company’s confidential information, played a role in preparing financial statements, and dealt with sensitive data. His career with them included promotions, and by May 2019, he was earning a substantial salary and was entitled to participate in the company's bonus plan for management personnel.
He did not enter into a formal written employment contract but recognised his obligation to adhere to the employer’s policies, encompassing a Code of Business Conduct and Ethics and a confidentiality policy.
In early 2019, the worker discovered that everyone in his department had received salary increases except him. Consequently, he recorded a conversation with an HR manager, who explained that not receiving a raise did not constitute discrimination.
On the same day, he engaged in a lengthy recorded conversation with a senior staff member, expressing concerns about the discretionary nature of bonuses and demanding clarity on his performance assessment.
Despite reassurances from the senior staff member that he was performing well, he persistently sought to define "exceptional" performance and challenged the discretionary aspect of bonuses. This conversation concluded with her noting areas for improvement, mentioning missed deadlines, and acknowledging occasional difficulties in collaboration.
According to records, the worker remained unconvinced about the discretionary nature of bonuses and presented documentation from the previous year to support his argument.
The management explained that bonus calculations varied, which the worker disagreed with. He continued to question the meaning of "discretionary," and the conversation ended with the employer assuring him that he met the required standard and was not singled out.
During the proceedings, the worker revealed that he had “surreptitiously recorded numerous one-on-one training sessions” between 2010 and 2014, over 100 "Toolbox Talk" meetings (often conducted by himself), and, in later years, approximately 30 meetings with supervisors and human resources personnel.
The topics of the conversations covered compensation and other employment-related matters. Additionally, he said he inadvertently recorded some conversations with colleagues when he forgot to deactivate the recording function on his phone.
Employer claims worker’s act of recording workplace conversations was unacceptable
Before the trial court, the employer argued that the recording activity “reveal[ed] a character of untrustworthiness, incompatible with continued employment and constitute[ed] cause for the [worker’s] summary dismissal. The [worker] has no entitlement to reasonable notice or pay in lieu of notice,” it said.
The court noted that the worker began making recordings of training sessions and “Toolbox Talks” soon after he began work.
The trial judge commented that “although his ostensible purpose in doing so — to improve his English — may not have constituted cause, [the worker] knew it was wrong, if not legally, at least ethically.”
“As the recordings continued, [the worker also] became less sensitive to how his co‑workers might feel about them and began to go down a ‘problematic’ path,” the court noted.
Meanwhile, the appeal court reviewed the worker’s case if his discrimination claims had merit. However, it also highlighted his misconduct in recording workplace conversations.
“The recording activity was underhanded and would be regarded by most employers as misconduct undermining the trust relationship between employer and employee,” the appeal court said.
“It also violated the privacy interests of persons who were recorded, as well as those who were discussed in the recordings.”
“It appears [the worker] became more and more concerned about his own remuneration and bonuses and in improving his own reputation by repeatedly pointing out the errors of others.”
“His last recorded conversation with [management] suggests that [he] had come to adopt an unrealistic view of his own abilities and an inflexible insistence that his own points of view should prevail,” the court said.
Thus, after considering the case’s circumstances, it still found that the worker’s misconduct was a valid cause for dismissal. It then dismissed his appeal.
