You need to let one of your employees go. They’ve only been on the team a few months but it’s not working out, and despite you giving clear instructions they do not seem to be improving. You’ve assessed the situation with your team and realized that it’s time to pull the trigger, so to speak.

You schedule a Zoom meeting, and everything seems to be going smoothly. They’re disappointed but they seem to understand, and they tell you that they’ll review the documents that you send over and get back to you shortly. To be honest, you don’t think much of it, and you go about your day.

Needless to say you’re shocked later that afternoon when your phone starts blowing up with messages.

Not only did that employee video your termination call on their cell phone, but they’ve posted it online, along with a video of themselves talking about why they should never have been fired.

Even worse, it’s gone viral.

This may sound like a plotline from a drama, but it’s based on countless true stories. A decade ago, the music retailer HMV made unfortunate HR news when, during a mass termination, the employee who was in charge of the Company’s Twitter account decided to live tweet his own termination. HMV’s leadership team went into a mad scramble to suspend the employee’s access, but the damage was done.

That’s just one example, but there have been others more recently where, yes, an employer’s meeting is captured on video. With cell phone technology improving by the day, it’s become easier and easier for employees to surreptitiously take video or audio recordings and then share it with others.

So what can employers do to protect themselves, both from humiliation and from liability?

What The Law Says

Many would wrongly assume that this sort of recording is not legal, or at least not legal without consent. The reality is that the employee legally has all the consent that they need, which happens to be their own.

The law in Canada requires consent from at least one party to record a conversation, but you as the person recording can also simultaneously be that party. This means that while it may be good form to let someone know that they’re being recorded, legally you may not have to.

So the employee’s actions may not be criminal, but do they break any of the laws of your particular workplace? They very well might, provided of course that you have a policy in place. There is no phantom requirement or policy at law to prevent anyone from recording their conversations, however there may be consequences within the workplace itself.

Have A Clear Policy In Place

While recording conversations may not be against the law per se, they can definitely be a violation of workplace rules provided that those rules are firmly and properly in place. As an employer, you get to make policies on just about anything, so long as they’re fair and equitable. If you want to make a policy prohibiting anyone bringing mugs from home into the office kitchen, you can do that too.

This of course means that you’re entitled to make policies about recording and about social media usage. If you want to make a policy that prohibits employees from recording conversations at work unless otherwise sanctioned, you can, and probably should. If you want to make a policy prohibiting employees from using their personal social media during working hours, you can do that as well.

These policies really are the laws of the workplace, and you can implement discipline for violations. A first offence may be a written warning, followed by another written warning for a second offence. In the case of repeated infractions, the employee may be subject to a suspension without pay (If your contract of employment specifically sets that out) and, ultimately, dismissal for cause, but that can be a much harder hill to climb.

Now there are two key things to remember. The first is that for these policies to be effective, employees have to know about them, and be trained on how they work. You cannot simply implement a policy, tell no one, and expect it to be the governing law. Repeated, refresher training on all your company policies can help ensure the rules are followed.

The other reality is that employees working remotely may be harder to govern. That does not mean that you have no control over the relationship, but there may be practical considerations such as allowing employees to use their own devices when on the go, adjustments to working hours, etc.

Treat Your Employees Fairly, Even In Dismissal

There’s an old saying that “people won’t remember what you say, but they’ll remember how you made them feel.” That is especially true in dismissing someone from their employment. Terminating an employee is never a fun or enjoyable process, but how you do it can be as strategic as the decision to terminate itself.

Whether the meeting is in person or virtual, don’t go into the meeting alone. Bringing a second person, ideally someone from your HR team, will help ensure that they go over the key points and that you both behave in a professional manner. Remember, the employee may be emotionally charged, especially if the news is coming as a shock. Staying calm and staying respectful can help keep things on course.

You also do not need to give an employee a reason for ending their employment, and oftentimes you shouldn’t. You’re allowed to terminate an employee without notice, so long as it does not violate the law or any human rights protections, and so long as you pay them what they’re owed in notice. No reason is required for a without cause termination.

Lastly, be humane. If you’re meeting in person, keep a box of tissues or a glass of water handy just in case things do get emotional. Be firm, and definite, but remember that this may be one of the hardest things the person goes through. If meeting in person, make sure that they have a safe way to get home, especially if they’re emotional. If it’s virtual, keep things brief, send them documents quickly, and give them adequate time to review any package with their lawyer before signing.

We’re Here To Help

Terminations are tricky, and all the more so if you’ve never had to do one before, or if you’re not sure how to structure your exit package. That’s where we help employers. Contact us to set up a consultation before going into that termination meeting so that we can review the package and make sure that it reduces your likelihood of a legal claim.

Also, if an employee has gone rogue, and is publicly defaming your business, you may need legal help there as well. Whether they’re spilling confidential information, trade secrets, or just out to ruin your good name, that’s also not okay. Even if you’ve already let them go, that does not give them free rein to attack what you hold dear. Please consult us right away if that’s going on so that we can figure out how to act fast and minimize any further damage.