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We are often asked by employees if they should secretly make audio recordings during meetings with their supervisors, investigative or disciplinary meetings, or co-workers. In response to such inquiries we advise employees to take handwritten notes during such meetings and to ask to be accompanied by their union steward (in a unionized environment) or a support person of the employee’s choosing. We suggest that both the employee and their witness make brief handwritten notes during the meeting. Handwritten notes are better, because they can be relied on later, if the employee made the contemporaneously at the meeting. Further, typewritten notes are easily modified; whereas it is obvious if handwritten notes are altered subsequently. Don’t forget to include the date and the names of the persons present in the meeting. Don’t be afraid to advise the employer’s representatives or co-workers that you are going to take notes. If they refuse, ask to audio-record the meeting. If they object to the audio recording, take notes anyway.
We also suggest purchasing a coiled notebook to use as a work diary for employees concerned about discipline or that their employment may be in jeopardy and that they take with them to work each day (do not use a notebook that is the employer’s property). We suggest that immediately after the meeting the employee make fulsome notes based on the brief notes that they took during the meeting. Again, don’t forget to date them. Keep both the brief notes made during the meeting and the more fulsome transcribed notes made immediately afterwards.
An employee will be allowed to use notes that were made during or immediately after a meeting in one of two ways. First, if the employee must testify about what occurred at the meeting, the employee can use the notes to refresh their memory. Secondly, if a significant period has passed and the employee can no longer recall what was said during the meeting, the employee’s handwritten contemporaneous notes can be used as “past recollection recorded” evidence.
A recent decisions from the BC Supreme Court and the Court of Appeal reinforce our advice that an employee should not make secret audio recordings of discussions that occur during the employment relationship.
In Shalagin v Mercer Celgar Limited Partnership, the employee sent an email to two of his managers threatening to commence litigation, if their disagreement about how his bonus was to be calculated was not resolved in the employee’s favour in a timely manner. As a result of the threat of litigation, the employer terminated the employee’s employment without cause. The employee filed a human rights complaint and sued his former employer in BC Supreme Court for wrongful dismissal and sought damages in lieu of reasonable notice.
During the ensuing legal proceedings, the employee disclosed that he had secretly made audio recordings of meetings he had with some of his managers and coworkers. As a result, the employer amended its defence to the employee’s lawsuit alleging that that the secret recordings made by the employee constituted just cause to terminate the employment relationship.
BC Supreme Court Justice W. Branch agreed. The Court concluded that by secretly making the audio recordings, the employee’s conduct destroyed the fundamental relationship of trust between the employee and employer. The Trial Judge held that, while it is legal to make an audio recording provided that one of the participants consents to it, the issue is “whether the employee’s actions fundamentally destroyed the trust relationship between employer and employee.” Ultimately, Justice Branch held that making the secret audio recordings constituted just cause to terminate the employee’s employment.
Recently, the BC Court of Appeal unanimously upheld the Trial Judge’s decision.
Accordingly, the best evidence is a handwritten contemporaneously note made by the employee, not a secretly made audio recording, which may justify the termination of the employment relationship even in circumstances where the employer did not have cause to terminate the employee’s employment without reasonable notice or payment in lieu thereof.
