Partner Article: Employees’ Secret Recordings of Workplace Meetings: 5 FAQs

By McInnes Cooper

In today’s workplace, every employee likely has access to equipment that could be used to secretly record their workplace conversations – including those with their employer. The ease of doing so, either by using their personal smartphone or even their employer’s equipment, can create a temptation too great for some employees to resist, particularly with the prevalence of remote work. To help employers manage the risks associated with being secretly recorded, here are the answers to five frequently asked questions about employees’ secret recordings of their employers’ workplace conversations with them.

1. Is it legal for employees to secretly record workplace conversations with their employers?

Canada has a “one-party” consent rule: as long as one party to a conversation is aware the conversation is being recorded, it’s legal to record the conversation. So, if the employee is recording their own conversation with their employer, the recording – even if unknown to the employer – is legal. But it would be illegal for the employee to, for example, stash a recording device to secretly record workplace conversations for which they themselves are not present. And remember: if an employee asks if they can record the meeting – so doesn’t do so “secretly” – you can say “no”. If you decline, it’s helpful to offer a viable alternative, such as inviting the employee to take notes, providing additional materials if necessary, or preparing a summary of the meeting after it’s over. 

2. Does secretly recording conversation with their employer amount to cause for termination of an employee’s employment?

Maybe: it depends on the specific circumstances, but there’s a reasonable chance it does. Often the employer only learns of the existence of secret recordings following the employment termination of the employee, when the employee seeks to rely on the recordings during legal proceedings, leading the employer to argue the making of the recordings constitute “after-acquired cause” for termination of the employee’s employment. For example:

• In the Alberta Court of King’s Bench’s 2022 decision in Rooney v. GSL Chevrolet Cadillac Ltd., the employer attempted to raise after-acquired cause based on the employee’s surreptitious recordings of workplace conversations. The Court refused to allow the employer to advance this argument but went on to note that while surreptitious recordings generally constitute just cause for termination, there might be exceptions in cases of power imbalances where the recordings are used to establish credibility. In this specific case, the Court indicated the recordings were justified due to the existing power imbalance and the employee’s concerns about constructive dismissal, focusing on the fact that the employment relationship was already “frayed”. The Court also commented that the employer had been unable to point to any relevant policies that impacted the recordings.
• However, the B.C. Supreme Court reached a different conclusion in its 2022 decision in Shalagin v. Mercer Celgar Limited Partnership. The employer terminated the employee’s employment without cause and the employee sued for wrongful dismissal. The employer subsequently discovered the employee had surreptitiously recorded a significant number of meetings with their colleagues, supervisors and HR personnel, over a 10-year period. Based on this discovery, it took the position it had after-acquired cause. The issue was whether the surreptitious recordings went to the root of the employment contract and fundamentally struck the employment relationship. The Court found the employee’s actions undermined trust and violated the privacy of those recorded, amounting to cause for termination. In reaching this conclusion the Court compared the employee’s reasons for making the recordings against the impact of the recordings on the employment relationship. Furthermore, the Court found the employee’s conduct contravened the employer’s code of conduct and confidentiality policies. The B.C. Court of Appeal dismissed the employee’s appeal, noting, “ I do not necessarily equate [the employee’s] surreptitious recording of his colleagues and supervisors with expressly misleading one’s employer or telling lies to someone in the course of one’s duties. However, the recording activity was underhanded and would be regarded by most employers as misconduct undermining the trust relationship between employer and employee. It also violated the privacy interests of persons who were recorded, as well as those who were discussed in the recordings.”
• Similarly, in the 2022 Alberta labour arbitration decision in Alberta Health Services v. Alberta Union of Provincial Employees, the employer terminated the employee for just cause. During the arbitration proceedings, the employee sought to introduce secret recordings of their conversations with their managers. The employer didn’t object to the admission of the recordings but argued the fact the employee made them constituted after-acquired cause for termination. The arbitration board agreed, finding “no hesitation in finding that the recordings were an extremely serious violation of trust and, once revealed, undermined irreparably the working relationship between the [employee and her] managers”.

3. Does off-duty posting by an employee of their secret recordings of their employer conversations amount to cause for discipline or for termination of their employment?

That depends on the effect of the post. Employees are subject to discipline for off-duty conduct, including social media activity, where their conduct has a detrimental impact on the employer’s business in any one of these ways:

• It harms the employer’s reputation or product.
• It renders the employee unable to perform their duties satisfactorily.
• It leads to refusal, reluctance or inability of the other employees to work with them.
• The employee has been guilty of a serious breach of the Criminal Code, rendering their conduct injurious to the general reputation of the employer and its employees.
• It places difficulty in the way of the employer’s ability to properly carry out its function of efficiently managing its works and efficiently directing its working forces.

For example, courts and arbitrators have regularly upheld discipline or even termination of employment based on off-duty social media bullying and harassment. In the context of an employee’s social media posts of secret recordings of employer conversations, it’s easy to see how an employer could strenuously argue the employee’s conduct could amount to cause for employment termination.

4. Can employees use secret recordings of conversations with their employers as evidence in a legal proceeding against their employer?

Arbitrators have historically expressed concern about admitting such recordings for a policy reason, being the risk that admitting secret employee recordings could have a “chilling effect” on “workplace cooperation, collaboration, open settlement discussions and frank exchange in problem solving”. Courts and arbitrations have also expressed concerns surrounding their potential unreliability. However, practically the admissibility often hinges on the purpose and circumstances under which the recording was made. For example:

• In the Alberta Court of King’s Bench’s 2022 decision in Rooney v. GSL Chevrolet Cadillac Ltd., the employer strenuously objected to the admission of the employee’s surreptitious recordings as evidence. The Court conducted a detailed analysis of the admissibility of the employee’s secret recordings. The Court began with the general rule that in a civil case (such as a wrongful dismissal case), it has the discretion to exclude relevant evidence where its prejudicial effect outweighs its probative value, including that which is illegally or “improperly” obtained. It then reviewed labour arbitration jurisprudence on which the employer rested its admissibility objections suggesting the risk that admitting secret employee recordings could have a “chilling effect” on “workplace cooperation, collaboration, open settlement discussions and frank exchange in problem solving”. Noting the recordings in this case did not fall into the admissibility exception applicable to illegal recordings (here, it was legal), the Court noted it could exclude relevant evidence where it is “improper” – but that secret recordings in the workplace aren’t always “improper”. The Court concluded that in the circumstances of this case, where the employee reasonably suspected they were being constructively dismissed, the secret recording was warranted and admitted it into evidence.

• The 2023 decision of the Ontario Superior Court of Justice in Teljeur v. Aurora Hotel Group offers a similarly cautionary illustration of the admissibility of secret employee recordings and the impact on the employer. There, the employer terminated the employee’s employment. The employee recorded the termination meeting without their employer’s knowledge then sued their employer for wrongful dismissal, including damages for bad faith in the manner of dismissal. The Court admitted the recording as evidence. Finding the recording “highlights a number of disturbing aspects about the [employee’s] termination”, the Court relied on the recording to find the employer acted in bad faith during the termination meeting, including encouraging the employee to resign and not paying the promised severance. On this basis, the Court awarded the employee $15,000 in aggravated damages. In 2024 the Ontario Court of Appeal upheld the Court’s decision. However, it’s notable that neither the decision of the Superior Court nor of the Court of Appeal indicate the employer objected to the admission of the recording as evidence nor raised the fact of the making of the secret recording as after-acquired cause for termination of employment.

5. How can you mitigate the risk of employees secretly recording (and even posting on social media) their conversations with you?

It’s impossible to eliminate the risk, but here are five actions to reduce the risk that an employee will secretly record meetings.

Put it in a Policy. Draft new policies or amend existing policies to be clear that employees are prohibited both from recording any workplace conversations and from posting those recordings on any online platform. And be sure to properly implement the policies to ensure they are enforceable if and when you have to rely on them.   

Location, Location, Location. It’s somewhat easier to control whether the employee records a conversation if it’s in person. However, many meetings of all kinds are held virtually, making it even easier for an employee to surreptitiously record it. If possible, hold significant meetings in person.

Assume the Worst. Even once you’ve put the necessary policies in place, act as though the employee is secretly recording you. This includes acting in a professional manner throughout every meeting. In particular, during termination meetings, be sure to conduct yourself honestly and in good faith to reduce the risk any recording can be used against you in a claim for damages for bad faith in the manner of dismissal.

Stick to a Script. It’s always a good idea to prepare – and follow – well-drafted speaking notes during any significant employee meeting. Not only does this help ensure you don’t say things you shouldn’t, it also helps ensure you cover the things you should. If you don’t know the answer to a question the employee asks, make note of it and commit to providing the answer. And ensure the script includes a reiteration of the fact that recording the meeting is not permitted.

Get Yourself a Witness. Regardless of the risk of secret recordings, it’s good practice to have two representatives attend significant meetings with employees: one to talk and one to take detailed (and legible) notes to sign, date and place in the employee’s file so you have access to them in the event there’s a legal proceeding down the road.

This article is information only; it is not legal advice. McInnes Cooper excludes all liability for anything contained in or any use of this article. © McInnes Cooper, 2025. All rights reserved.