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…is a bit like do-it-yourself surgery. The outcome is usually not what you hoped for. The story is always the same. A dispute is brewing in the workplace. At some point, the trust breaks down between the parties when somebody denies saying something (making a promise, admitting fault, or saying something inappropriate) clearly recalled by another party. Somebody decides to start secretly recording conversations in meetings or by telephone. When the matter comes to a head in a hearing (arbitration, board hearing, etc.) the fact of the recordings are disclosed. Then, everything gets ugly.

The first question is whether the secret recordings will be admitted into evidence. Arbitrators and labour boards across Canada have generally said no: secret recordings are antithetical to fostering trust in the labour relations context and, therefore, are inadmissible. For example, in the recent decision BC Ferry Services Inc. v. BC Ferry and Marine Workers’ Union arbitrator McEwen refused to admit the transcript of a recording that the grievor made surreptitiously of a number of meetings and phone conversations with employer representatives. Arbitrator McEwen echoed concerns raised almost 20 years ago in HEABC and HEU [1997] B.C.C.A.A.A No 374, while there is no principle prohibiting all tape recordings, that “it is not the recording that is wrongful but the concealment that makes it objectionable.”Arbitrators have also excluded tape recordings of bargaining sessions, settlement discussions, and disciplinary meetings.

Not all surreptitious recordings are excluded. Arbitrators and labour boards have admitted surreptitious recordings when a party’s prior conduct warrants secret surveillance – for example, in a union organizing drive, or where an employer has consistently engaged in unfair labour practices directed towards eliminating collective bargaining rights. In those examples, there is no continuing relationship to maintain: it is the very existence of a bargaining agent that is at stake. Some arbitrators have also applied a “relevancy” test: if the tape recording is relevant, it should be admitted. However, the preponderance of arbitration decisions are critical of secret audio recordings and tend to exclude or, at the very least, limit the use of such recordings at an arbitration hearing.

The second issue is whether the secret tape recordings do more harm than good to an employee’s case. Even arbitrators who admit these recordings express a reluctance to encourage employees to secretly record conversations. In one recent English case on this point (Vaughan v. London Borough of Lewisham & Ors), the Employment Appeal Tribunal (“EAT”) refused to admit tape recordings on the basis that the employee could not explain why they were relevant. While the EAT went on to conclude that it may have admitted the audio recordings under different circumstances, it also pointed out the hazards of making those recordings in the first place:

We should say, in order to get this point out of the way, that the practice of making secret recordings in this way is, to put it no higher, very distasteful; but employees such as the Claimant will no doubt say that it is a necessary step in order to expose injustice. Perhaps they are sometimes right, but the Council has already made it clear that it will rely on the Claimant's conduct in making these covert recordings as illustrative of the way in which her conduct had destroyed any relationship of trust and confidence between her and it. It will also rely, as relevant to credibility, on the fact that, as it says, when asked whether she had made such recordings she has on several occasions denied it.

The point is that employees who secretly record conversations and want to play those recordings at a hearing should be careful what they wish for: all they may be doing is demonstrating for the arbitrator why they cannot be trusted and should not be reinstated to their position. The audio recordings often do more harm than good.

Finally, a union should consider the long-term implications of secretly recording conversations. Every time a union tries to get a secret audio recording admitted into evidence, it is making it that much easier for an employer to justify secret video surveillance in the workplace.

In conclusion, secretly recording conversations is distasteful and often does more harm than good. Arbitrators often refuse to admit these recordings into evidence because of the harm they do to labour relations. If you really distrust the people you are talking to, then there are two things you can do. First, tell them you are recording them – don’t do it secretly. Second, if they won’t let you record the conversation, take careful notes and then send an e-mail immediately to record your version.


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This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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