In Teljeur v. Aurora Hotel Group 2023 ONSC 1324 the Ontario Superior Court of Justice awarded $15,000 in moral damages to the Plaintiff, John Teljeur, in addition to 7 months’ pay for wrongful dismissal. The award of moral damages was largely thanks to the contents of an audio recording made by the Plaintiff during his termination meeting with his employer (the Defendants).

Background

John worked for the Defendants as a General Manager. The Defendants terminated his employment without cause after 3 years. John was 57 at the time of his termination. John decided to record the meeting in which he was advised of his termination. The Defendants were unaware that John did this. During this meeting, the Defendants made representations to John pertaining to his termination, most of which were not followed through upon. John ultimately brought an action against the Defendants seeking damages for wrongful dismissal, moral damages as well as an expense reimbursement in the amount of $16,68.03 representing the amount of expenses he incurred on behalf of the Defendants for which he had not been compensated.

The Decision

In coming to its decision, the Court found that John had been wrongfully dismissed, and that based on his age, length of service, the character of his employment and the availability of similar employment, that he was entitled to 7 months’ pay in lieu of reasonable notice of termination. 

The Court also decided to award moral damages. Moral or bad faith damages may be awarded by a Court in circumstances where employers engage in conduct while dismissing an employee that is unfair or is in bad faith. Employers may act in bad faith by being untruthful, misleading or unduly insensitive. Damages may be awarded for bad faith where it is in the reasonable contemplation of the parties that the manner of dismissal could cause the employee mental distress. In John’s case, the recording of his termination meeting provided evidence of the Defendant’s bad faith behaviour. The court confirmed several examples of bad faith conduct from the transcript of the recorded meeting. These included the following: 

1. The audio recording revealed that despite asking for it several times, John never received written notice of his termination. Section 54 of the Employment Standards Act (ESA) provides that employers are obligated to provide employees with written notice of termination. The Defendants did not comply with this obligation. 
2. The Defendants failed to pay John his statutory minimum termination pay on time. Section 11(5) of the ESA states that an Employer must deliver an employee’s statutory minimum entitlements no later than 7 days after termination or by the next pay day. The Defendants did not do so. 
3. The Defendants owed John $16,680.03 for out-of-pocket expenses he incurred on their behalf prior to the termination of his employment. The Defendants refusal to pay John this amount was contrary to section 60(1)(a) of the ESA which provides that employers cannot reduce an employee’s wage rate during the notice period. 
4. Notably, the audio recording also revealed that the Defendants promised John 8 weeks’ severance pay (more than his statutory minimum entitlements) during his termination meeting. The Defendants did not follow through on this promise. 
5. The audio recording also revealed that the Defendants attempted to persuade John to resign. Though the Court did not definitively say the Defendants did this to avoid their obligations to pay John termination pay, the Court found it was a possibility. 

As a result of the above examples of bad faith behaviour on the part of the Defendants, the Court awarded John $15,000 in Moral damages. The Court found that the Defendant’s actions were untruthful, misleading and unduly insensitive and caused John mental distress.

Can I Record my Employer Without their Knowledge?

In Ontario, there only needs to be one party to a private conversation who consents to the conversation being audio recorded. This concept is referred to as “one party consent”. This principle of course does not apply in situations involving law enforcement or legal professionals. However, this does mean that employees are free to record termination meetings with their employers without their employer’s knowledge or consent.

Takeaway

Employees often feel powerless at the time of their termination. The option of recording a termination meeting has the potential to give power back to employees, ensuring that employers are held to their word after making promises pertaining to termination offers. Additionally, the possibility that termination meetings may be recorded will help to keep bad faith behaviour of Employers in check. As John’s case suggests, what happens behind closed doors doesn’t have to stay there.