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THE QUESTION

We have a work-at-home option at our workplace but recently discovered that our leader has had others sit in "silently" on our teleconference meetings, without informing anyone on the call. Most concerning, we suspect this executive has conducted the practice during one-on-one, manager-to-employee calls to discuss performance reviews and also personal matters, including medical situations and divorce proceedings.

It was shocking to find out that confidentiality may have been breached during performance review sessions, and also when we were presumably having private conversations about personal matters included medical situations and divorce proceedings. A former employee told us that the conversations may have been taped without our knowledge. What is the law on this? Should we go to HR, or would HR have endorsed this conduct?

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THE FIRST ANSWER

George Cottrelle

Partner at Keel Cottrelle LLP, Toronto

Your question raises a number of legal and HR issues.

The Criminal Code of Canada makes it an offence to intentionally intercept (including record) a private communication by means of a device. There are exceptions, including where one of the parties to the private communication consents to the interception.

The right to privacy in the workplace is not unlimited, but employees generally have a reasonable expectation of privacy for certain matters, particularly health and personal matters. Employees in certain Canadian jurisdictions are protected by privacy legislation, which generally requires that employers obtain an employee's consent to the collection of personal information and restricts the employer's disclosure of that. The legislation in some provinces provides remedies for the violation of employee privacy. In addition, the common law provides protection against intentional and offensive intrusions into an employee's private concerns. Many employers also have privacy policies.

The fact that your executive leader has [had others] secretly listening in to your calls and meetings may be a fundamental breach of your employment relationship, giving rise to a possible constructive dismissal claim. Employers are permitted to monitor workplace activities of employees, but undisclosed monitoring may constitute a breach of good faith.

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You should report this matter to HR, without fear of reprisal. Given this matter involves your executive leader, HR should be advising the board of directors, who may decide to retain an expert to conduct an independent workplace investigation.

THE SECOND ANSWER

Eileen Chadnick

Principal, Big Cheese Coaching and Chadnick Communications, Toronto

Your e-mail prompts important questions about telecommuting issues, policies and best practices. Workplaces would do well to consider the various ramifications and have appropriate policies and agreements in place. Your HR department may or may not already have this covered.

But there's something else at stake here. It sounds like you might be navigating this from a place of assumptions and distrust. Your suspicions about your leader's recent behavior are important to look into but your e-mail indicates you aren't certain these breaches occurred. You need to find out more, but do consider the possibility that if your leader did act in error, it may have been done without malicious intent or awareness of how this behaviour was inappropriate.

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Start with an open and candid conversation with your leader to find out more and share your concerns. This would be more respectful than going through back channels. Even if this leader made errors in judgment, a respectful dialogue can preserve trust and set the stage for better practices.

Policies are important. But they don't replace respect for one another. Exemplify this value by having the right kind of conversation with the right person – your leader – and go from there.

Got a burning issue at work? Need help navigating that mine field? Let our Nine To Five experts help solve your dilemma. E-mail your questions to ninetofive@globeandmail.com.

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