The B.C. Court of Appeal in Shalagin v Mercer Celgar Limited, 2023 BCCA 373 (“Shalagin”) upheld a decision finding that an employee’s conduct of surreptitiously recording meetings and conversations with other employees, which was discovered post-termination, constituted just cause for dismissal. In the circumstances, the recordings struck at the root of the employment relationship, such that mutual trust between the parties was broken.
Factual Background
The employee, Mr. Shalagin, worked for Mercer Celgar Limited Partnership (“Mercer”) from January 6, 2010, until he was terminated without cause on March 25, 2020. Upon termination, the employee was paid in lieu of notice pursuant to the B.C. Employment Standards Act (“ESA”).
At the time of his termination, the employee was a senior financial analyst with access to Mercer’s sensitive financial information. While his employment was not governed by a written employment agreement, the employee was bound by Mercer’s policies, including a code of business conduct and ethics, a confidentiality policy, as well as the Chartered Professional Accountants of B.C.’s Code of Conduct.
After he was terminated, the employee filed a complaint under both the ESA and the Human Rights Tribunal and commenced an action for wrongful dismissal.
As part of his human rights proceeding, the employee disclosed that over the course of his 10 years of employment, he had made numerous secret recordings of meetings and conversations with his co-workers, including with supervisors and HR personnel. The employee submitted that he made the recordings because he thought they related to his rights and alleged discriminatory or bullying treatment of him and his colleagues.
Mercer, upon learning of these recordings, asserted that the employee’s conduct constituted cause for his dismissal, and that he had no entitlement to reasonable notice or pay in lieu of notice, in defence to the wrongful dismissal action.
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