THE QUESTION
I worked at a retail shop. When the store was empty, my coworker and I talked about our personal lives, occasionally complaining about our boss. I later found out that my boss was recording our conversations because he fired me for talking poorly about him. I never knew he was recording this whole time and I feel extremely uncomfortable. He says he was allowed to record audio because we knew there were security cameras set up in the store. Do I have grounds to take legal action against him?
THE FIRST ANSWER
Hermie Abraham, employment lawyer, Advocation, Toronto
In Canada, there are no specific statutory (for example, government-enacted) employment laws that prohibit the monitoring of employees. In Ontario, the Employment Standards Act requires certain businesses to have an electronic monitoring policy – but again, nothing prevents an Ontario employer from monitoring.
Canadian common laws (for example, judge-made laws) have privacy protections that apply in employment. One such law, which could apply in your case, is the tort of Invasion of Privacy. But to be successful in this legal action, you would have to show that you had a reasonable expectation of privacy, which might be hard to prove in this case. First, it is generally acceptable for retail employers to use surveillance cameras in public areas on their premises. So, there is nothing inherently wrong with this type of monitoring. And if you were aware of this monitoring (even if you thought the monitoring was only video), it would be hard to argue that you had a reasonable expectation of privacy.
The word ‘monitoring’ is all-encompassing. Monitoring can include the creation of a record, such as an audio recording, video recording, history of online searches and keystrokes, which can be archived and reviewed. Given that employers are not prohibited from monitoring under government-enacted laws, it would still default to the common law to determine if there was an invasion of privacy.
Many video recording systems also record audio. If the store surveillance system was recording both video and audio in public areas of the store, I feel there wouldn’t be an expectation of privacy. If the employer was recording his employees separate and apart from store surveillance, then depending on where the recording took place and why the employer was recording, there might be a breach of privacy.
The other thing to know is that most employees can lose their job at any time and for any reason, provided that the reason does not violate human rights laws (for example, firing someone because of their race, gender, religion or disability). Though your employer is legally able to fire you for talking poorly about him, he would still have to provide you with notice of termination, which cannot be less than what is required under statutory employment laws (which depending on your province, is the Employment Standards Act, Employment Standards Code, Labour Standards Act or Labour Standards Code).
THE SECOND ANSWER
Jonathan Dowhaluk, partner, Taylor Janis Law Group, Edmonton
If you are not a party to the conversation, it is a criminal offence for you to record that conversation without the consent of the parties. It is only legal for your employer to record conversations in the workplace if there is a representative of the company present or if you have given their consent to be recorded.
The issue here is whether your employer had your implied consent to record private conversations given that you were aware that there were surveillance cameras installed. The second issue is whether the employer was entitled to rely on the information learned through these recordings to terminate your employment with just cause, (which means termination without notice or pay in lieu of notice).
In Alberta, employees enjoy a reasonable expectation of privacy under Alberta’s Personal Information Protection Act (PIPA) unless they explicitly waive that right through contract or otherwise. If an employer has given sufficient notice of surveillance, that notice can also remove the employee’s reasonable expectation of privacy. For example, if the employer has posted notices and signs that are easily readable, notifying employees that the area was being monitored, both through video and audio, the employer could argue that the employee had no reasonable expectation that their conversation would be private. Absent these notices to the employee, it is not likely that an employer can justify recording employee conversations and using it to justify termination.
With all of the above considered, there is a good chance that you not only have a strong case of wrongful dismissal against your employer, but if it is demonstrated that the employer breached your privacy interests, you may also be entitled to additional damages under the PIPA.
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Andrea Yu