Dec 13, 2018

Another Canadian Court Warns Employees Against Making Secret Recordings at Work

Schaer v. Yukon (Government of), 2018 YKSC 46 (CanLII)

In a previous blog entry, we wrote about the laws surrounding secret recordings in the workplace. As we cautioned: “[b]efore creating such recordings, be sure to think carefully about the necessity of the action and check whether any workplace policies may be engaged.”

At that time, Justice Edmond (Court of Queen’s Bench of Manitoba) had just issued a strong warning to employees who make surreptitious recordings at work and then seek to use such recordings to their advantage in subsequent litigation. Now in the tail end of 2018, we have a Court in another Canadian jurisdiction again issuing the same warning: make secret recordings at your own peril.

The case in question is Schaer v. Yukon (Government of), 2018 YKSC 46. Schaer was a Senior Business Development Advisor employed by the Yukon Government in its Department of Economic Development. He was appointed to the position in May 2017 and made subject to a probationary period for the first six months of employment. Prior to the end of the probationary period, Schaer was called into a meeting and informed his probationary period would be extended based on his job performance to date. Schaer objected and later sought to challenge the probationary extension by speaking with an Assistant Deputy Minister (“ADM”). The Court explained what happened next:

During the meeting, Mr. Schaer showed ADM Rose a list of quotes that he had on his cell phone, which I understand were quotes of statements made by his supervisor or other co-workers. ADM Rose described Mr. Schaer as being “clearly agitated” during the meeting, and it was his impression that Mr. Schaer showed him the quotes to try to threaten him into taking back the extension letter and passing him through probation, in order to avoid their publication.

Later that day…Mr. Schaer admitted that, since commencing his employment, he had been both documenting and digitally sound recording his conversations and meetings “with all internal and external stakeholders”, i.e. colleagues and clients. [emphasis added]

Soon thereafter, Schaer was “released” from his probation (i.e. fired). In his termination letter, the Government of Yukon wrote that Schaer’s secret recordings were “highly inappropriate” and had “irreparably damaged the Government of Yukon’s trust and confidence in [him] as an employee.” Schaer challenged his dismissal, ultimately seeking judicial review at the Supreme Court of Yukon.

Schaer also begin publishing online copies of his recordings and tweeting out alleged quotes of conversations where he alleged racially discriminatory comments were made by his superiors and co-workers. In total, the Court noted 28 such separate online publications were made.

Secret Recordings Justified Probationary Dismissal

At the Supreme Court of Yukon, Schaer argued that he had not been properly evaluated during his probationary period and was instead fired for “blowing the whistle” on racially discriminatory comments being made in the workplace.

The Court rejected Schaer’s argument and held he was properly released during probation. In particular, Justice Gower noted that the Yukon Government had not ignored Schaer’s evidence with respect to racist comments in the workplace – rather, they had ordered an internal investigation of the same. What was at issue instead was the fact that Schaer had made secret recordings of conversations with co-workers and clients and then attempted to use the same to bully his way out of performance concerns.

Justice Gower also made the following noteworthy comments:

I conclude from all this, that YG had a legitimate employment-related reason to reject Mr. Schaer on probation. This was the complete breakdown of the relationship of trust between him and his employer as a result of the secret digital recordings he had made since the commencement of his employment. While one might argue that such conduct might also be grounds for disciplinary action, it is clear from the evidence that YG elected to reject Mr. Schaer on probation rather than take disciplinary action. It had every right to do so: Jacmain, at p. 36. [emphasis added]

Thus, the decision in Schaer v. Yukon (Government of) represents another clear judicial warning to employees that making unauthorized secret recordings at work may warrant the imposition of discipline. In this case, they also led to Schaer outright losing his job.

According to media reports, Schaer is challenging the decision of Justice Gower. In the meantime, however, he has been permanently enjoined from “publishing any further information arising from any of his secret recordings during his employment.”

Lessons for Employers and Employees

Employers would be well served by making sure there are clear warnings to employees in a disciplinary policy against making recordings at work without authorization. Should there then be a subsequent breach of policy, discipline can be safely issued absent any real ground for objection. Likewise, employees themselves should be cautious about making secret recordings. Often these are thought of as being a silver bullet in future disputes with an employer. Yet as Schaer v. Yukon (Government of) demonstrates, making secret recordings may well have exactly the opposite effect.