Recording workplace conversations can be a sensitive and complex topic in Canada. With increased awareness about employee rights, privacy and the need for documentation, many wonder whether it’s legal or ethical to record discussions in the workspace.

In this article, we’ll explore the rights of both employers and employees, how such recordings can either help or hinder situations and the guidelines around bringing a support person to employee performance meetings.

Contents

• Employer's rights
• Employee's rights
• How recording conversations can help 
• How recording conversations can backfire
• Support persons' rules in performance meetings
• Conclusion

Employer’s rights

Recording workplace conversations in Canada involves balancing the rights of both employers and employees.

In Canada, employers have some rights when it comes to recording workplace conversations, but these rights are not absolute.

An employer may choose to record conversations in the workplace, especially during meetings, for purposes such as maintaining accurate records of discussions, ensuring compliance with company policies or protecting against future disputes. However, this must be done with adherence to privacy laws and consideration for the reasonable expectation of privacy employees have.

Under Canadian law, an employer must have a legitimate reason for recording conversations and, in most cases, they are required to inform all parties involved. The Personal Information Protection and Electronic Documents Act (PIPEDA) and various provincial privacy legislation govern the collection, use and disclosure of personal information in the workplace. Employers must obtain consent if they are going to record conversations, and they must make sure their practice is consistent with the purpose for which consent was given.

In unionized workplaces, collective bargaining agreements may contain specific provisions about recording workplace discussions, requiring additional consent or limiting when and how recordings can be made.

Employee’s rights

Employees also have rights when it comes to recording workplace conversations, but these are often more restricted compared to employers.

An employee may choose to record a conversation, such as a meeting with a supervisor or a disciplinary discussion, to have evidence of what was said, particularly if they believe they are being treated unfairly. However, covertly recording a conversation without the employer’s knowledge can lead to significant legal and employment consequences.

In Canada, the legality of an employee recording a workplace conversation depends largely on whether the recorder is a participant in the conversation. Under the Criminal Code of Canada, an individual can legally record a conversation as long as they are a participant. This means if an employee is involved in the meeting, they can legally record it without obtaining consent from other participants. However, secretly recording a meeting can be considered a breach of trust and may result in disciplinary action, including termination, if it is against company policy.

Some employers have policies regarding recording in the workplace and breaching these policies can lead to disciplinary measures. Employees should consider these policies carefully and communicate openly about their intentions to record to avoid potential negative outcomes.

How recording conversations can help

Recording workplace conversations can offer several benefits, especially in situations where there may be disputes, misunderstandings or allegations of misconduct. Here are some ways recording can be helpful:

• Accurate record keeping: Recording conversations can provide an accurate account of what was said during important meetings, such as performance reviews or disciplinary hearings. This reduces the risk of miscommunication and ensures both parties have access to the same information.
• Evidence in disputes: In cases of workplace disputes, such as allegations of harassment, discrimination or unfair treatment, having a recording can serve as evidence to support an employee’s or employer’s position. This can make investigations clearer and ensure decisions are made based on factual information.
• Training and improvement: Recordings of performance meetings can be used as a tool for reflection and improvement. Employers can use these recordings to review their communication style and make necessary adjustments for better outcomes in future meetings.

How recording conversations can backfire

While recording conversations can provide benefits, it also has the potential to hinder workplace relationships and create challenges:

• Breach of trust: Recording a conversation without consent can create a significant breach of trust between employees and employers. The workplace relies on mutual respect and trust, and secretly recording a meeting can damage these relationships. Employees may feel their privacy is violated and employers may perceive such actions as deceitful.
• Legal consequences: Recording without consent can lead to legal complications, particularly if it violates privacy laws or company policies. Employers must navigate privacy regulations carefully and employees who record without permission may face disciplinary action, including termination.
• Negative impact on workplace culture: the knowledge some conversations are being recorded may cause employees to feel uncomfortable and less willing to speak openly. This can lead to a negative workplace culture where honest communication is hindered, which can impact productivity and morale.

Support persons’ rules in performance meetings

In Canada, employees have the right to request a support person during certain types of workplace meetings, particularly those that are disciplinary in nature.

A support person can be a union representative or a trusted colleague who is not party to the dispute. The role of the support person is generally to provide emotional support, act as a witness and ensure the employee is treated fairly during the meeting.

In unionized workplaces, employees have the right to have a union representative present during disciplinary meetings, as outlined in most collective agreements. Employers must inform the employee of this right and, if the employee chooses to have a representative, the employer must accommodate the request.

In non-unionized workplaces, the right to a support person is less clear-cut, but many employers allow it as a best practice to ensure transparency and fairness. Employers are not legally required to permit a support person, but refusing such a request could be seen as unfair treatment, especially if the meeting involves serious issues that could affect the employee’s job.

Everyone should be aware the support person is not there to argue on behalf of the employee or take control of the meeting. Instead, they are there to provide support and observe. Employers should make sure to set clear expectations about the role of the support person before the meeting begins.

Conclusion

Recording workplace conversations in Canada involves balancing the rights of both employers and employees.

While employers may have legitimate reasons to record conversations, they must ensure they comply with privacy laws and obtain consent. Employees may also have the right to record conversations they are a part of, but they should do so transparently to avoid legal and employment repercussions. Recordings can help by providing accurate records and evidence, but they can also hinder by damaging trust and affecting workplace culture.

Additionally, allowing a support person during performance or disciplinary meetings can help ensure fairness and transparency, contributing to a more positive and trusting workplace environment.

By understanding these rights and best practices, both employers and employees can create a respectful and fair workplace where communication is open, and everyone’s rights are protected.

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Originally published in the Winnipeg Free Press on October 26, 2024: https://www.winnipegfreepress.com/business/2024/10/26/recording-workplace-conversations-in-canada